Clinical Neuropsychologists: Training, Credentials and Courtroom Credibility

by Daniel R. Orme1

George "Brick" Johnstone2

Clinical neuropsychologists specialize in evaluating brain-behavior relationships to determine the presence and severity of brain injury and, as a result, can be valuable expert witnesses. This article provides information that should be of use to the practicing attorney when selecting such a witness.

I. Introduction

Neuropsychology is the study of brain-behavior relationships. Clinical neuropsychologists evaluate individuals who may have compromise of brain functioning, such as that associated with traumatic brain injury (TBI), neurologic illnesses, develop-mental disorders, and genetic conditions. These evaluations generally consist of records review, clinical interviews eliciting pertinent historical information and current mental status, and the administration of psychometric tests. The tests assess a range of cognitive skills, such as intelligence, academic ability, attention/concentration, memory, language, motor skills, perception, sensation, reasoning, and problem-solving in addition to personality and emotional variables. These evaluations allow for identification of cognitive strengths and weaknesses, treatment and educational planning, diagnostic determination, and conclusions regarding the impact of an injury or illness on brain functioning.

In Missouri, neuropsychologists may diagnose, treat, and testify regarding the physical cause of organic brain deficits.² Nationally, clinical neuropsychologists are increasingly called on as expert witnesses to assist in legal cases involving, for example, personal injury, product liability, medical malpractice, workers' compensation, Social Security determination and other disability assessment, and competence to make a contract or will.³ As of 1997, a computer search found the word "neuropsychologist" associated with 401 state and federal court decisions.⁴ Fifty-six and 83% of these decisions were within the most recent five- and 10-year periods, respectively; 98% were since 1980. The recent development of "neurolaw" and strong endorsement of "neuropsychologists in the legal setting" by practitioners of this area of jurisprudence⁵ has contributed to greater use of neuropsychologists by the legal community. This trend is unlikely to reverse or even level off in the foreseeable future.

For the attorney, there are two challenges: how to locate and effectively interact with a qualified neuropsychologist. This article will address these issues.

II. Education and Training

Locating a competent neuropsychologist requires knowledge of the educational and professional standards of that profession. In the State of Missouri, there are no provisions for specialty (i.e., "neuropsychology") licensure in psychology. Rather, psychologists obtain a generic license to practice psychology and then, according to the State Committee of Psychologists' Ethical Rules of Conduct, "limit practice to the areas in which competence has been gained through professional education, training derived through an organized training program and supervised professional experience."⁶ There is no granting of practice privileges in psychological specialties. Additionally, since the criteria for competence are vague, the burden typically falls to the individual psychologist and that individual's conscience to determine whether training is sufficient. However, if a psychologist is clearly practicing outside that individual's areas of expertise, formal ethical charges can be raised with the State Committee of Psychologists and that individual sanctioned.

At the national level, neuropsychological organizations have developed more stringent training guidelines. The prudent attorney should refer to these when retaining a neuropsychologist as an expert witness. The first standard was published in 1989.⁷ This requires "[t]wo or more years of appropriate supervised training applying neuropsychological services in a clinical setting" and licensure as a psychologist.⁸ Further requirements are "[s]uccessful completion of systematic didactic and experiential training in neuropsychology and neuroscience at a regionally accredited university" and "[r]eview by one's peers as a test of these competencies."⁹ The definition further adds: "[A]ttainment of the ABCN/ABPP Diploma in Clinical Neuropsychology is the clearest evidence of competence as a Clinical Neuropsycholgist."¹⁰ The ABCN/ABPP (American Board of Clinical Neuropsychology/American Board of Professional Psychology) diploma implies board-certification status.

The 1989 standard was revised by the National Academy of Neuropsychology (NAN) in 2001 and is applicable to individuals trained since that date. It lists the following minimal criteria:

• A doctoral degree in psychology from an accredited university training program.

• An internship, or its equivalent, in a clinically relevant area of professional psychology.

• The equivalent of two (full time) years of experience and specialized training, at least one of which is at the post-doctoral level, in the study and practice of clinical neuropsychology and related neurosciences. These two years include supervision by a clinical neuropsychologist.

• A license in his or her state or province to practice psychology and/or clinical neuropsychology independently, or is employed as a neuropsychologist by an exempt agency.¹¹

Further delineation of specific knowledge, skills, and formal educational experiences necessary for training to become a clinical neuropsychologist was offered at a meeting of a group of leaders in the field. This has become known as the "Houston Conference on Specialty Education and Training in Clinical Neuropsychology."¹² The outcome was a process, noted in some detail, for becoming a qualified neuropsychologist. It lists areas of knowledge (see Appendix on page 188) and skills (see Appendix on page 188) that are necessary. These skills and knowledge are obtained "through multiple pathways, not limited to courses, and may come through other documentable didactic methods."¹³ The Houston conference also noted that training occurs at the doctoral, internship, and residency levels. The "doctoral level… provides the generic psychology and clinical core" as well as provides the foundation for acquiring the required specialty knowledge and skills.¹⁴ At the internship, skills necessary for "the general practice of professional psychology" are obtained.¹⁵ Advanced training, aimed at establishing independent practice level skills in clinical neuropsychology, is offered at the residency level. Residencies must be two years long, housed in programs with board-certified faculty, at fixed sites, allow access to and interaction with allied professions, and provide experiences in clinical service, clinical research, and educational activities. While the espoused goal of the Houston conference was to establish an "aspirational, integrated model of specialty training in clinical neuropsychology," the product has been taken by many to represent minimal requirements.¹⁶ Many training programs now note that they adhere to the Houston conference standards. There continues to be considerable debate on the topic, however, and these standards are not universally accepted.¹⁷ Still, attorneys who wish to obtain neuropsychological consultation would do well to be familiar with these standards and inquire of potential expert witnesses whether their training conforms to them.

To establish a neuropsychologist's expert witness credentials, more than academic preparation is important. Laing and Fisher list other qualifications that can be of value, including:

• Academic affiliations and teaching experiences

• Percentage of time devoted to conducting neuropsychological evalu-ations

• Publications in peer-reviewed journals

• Editorial board positions

• Membership in professional org-anizations

• Participation in research and grants

• Supervision and training of pre- and post-doctoral students in clinical neuropsychology

• Total number of patients with a specific disorder that have been evaluated

• Continuing education in neuropsychology.¹⁸

While extensive records in each of these areas is not necessary for competence, generally speaking, the greater experience a neuropsychologist has in these, the better that individual will present as an expert witness.

IV. Board Certification

The most obvious evidence of competence to practice clinical neuropsychology is the award of board certification. While there are various boards, two are widely respected and are the most common in the field: the American Board of Clinical Neuropsychology (ABCN)¹⁹ and the American Board of Professional Neuropsychology (ABPN).²⁰ Four hundred fifty-four and 223 individuals are board certified by ABCN and ABPN, respectively (eight and two in Missouri). It is safe to say that psychologists who are certified by these boards have been rigorously reviewed and judged by their peers to have sufficient academic preparation, clinical experience, and clinical competence to practice clinical neuropsychology. The standards are fairly similar for both boards. The ABCN has the additional requirements of a written multiple-choice test of knowledge of neuroanatomy, behavioral neurology, psychological testing principles, and clinical neuropsychological assessment, and two years supervised experience in the field. The ABCN also is one of 11 specialty boards recognized by the American Board of Professional Psychology (ABPP).²¹ While there continues to be talk of a merger of ABCN and ABPN, this appears unlikely in the foreseeable future. The interested reader may wish to consult the web pages of these boards for additional information concerning them, including contact information for board-certified members.

As an aside, it also should also be noted that there are a number of vanity or "bogus board certifications" in a variety of related specialties, including neuropsychology and forensic psychology.²² These require little or no formal academic preparation, tests of knowledge and skills, or true peer review for award of board-certified status. Instead, these are often based on accumulating points based on criterion such as years of education and years of experience. A psychologist who presents as board-certified on this basis runs considerable risk of appearing deceptive and being held to the higher clinical standards of board-certified individuals, but without requisite background.

V. Choosing and Interacting With a Neuropsychologist

A competent neuropsychologist can provide unique and critical information that can be of considerable value in the legal arena. For example, they can assess competency to stand trial and/or to manage one's own affairs, assess levels of impairment and causality in brain injury civil suits, and serve as consultants regarding the evaluations conducted by other psychologists.²³ Their evaluations are detailed, clinically and psycho-metrically sound, and provide information that is unique to other health professionals' evaluations. Opinions rendered are based on knowledge of neurological conditions, comparison of patient versus normative sample's performance on standardized tests, and pattern analysis.²⁴ Pattern analysis contrasts patients' cognitive strengths and weaknesses with those of known patient groups. For example, does the patient present with patterns of cognitive strengths and deficits like those seen in patients with frontal, left-sided, or subcortical injury? Are the skill deficits consistent with those that follow head trauma, anoxia, or toxin exposure? Is there reason to suspect the patient is exaggerating symptoms? The detailed qualitative and quantitative information that a neuropsychological evaluation derives, combined with the neuropsychologist's specialized knowledge of neurological conditions, results in significant descriptive and predictive information concerning individual patients. Neuropsychological tests are standardized measurements of behaviors that reflect brain functioning. Accordingly, in many instances the clinical neuropsychologist's testimony is critical to the outcome of a trial. Attorneys who seek their services, then, are advised to carefully select and use these experts.

To optimize the lawyer-neuropsychologist relationship, it is recommended that the attorney personally contact prospective neuropsychological experts to discuss their credentials and general information regarding the case. Regarding credentials, determine how their education, experience, and other significant variables match those noted above. It also is important to determine whether there is anything untoward in the experts' background, such as ethical complaints, arrests, or licensing board actions.²⁵ If there are such "skeletons," it is then important to discern whether they have an impact on the expert's credibility.

The initial contact should involve a discussion of fees. Psychologists typically charge for consultation, records review, patient evaluation, depositions, travel, mailings, and other items incident to an evaluation and testimony. Incidentally, some attorneys elect to have their clients obtain neuropsychological evaluations without advising the neuropsychologist of the legal nature of the work and then billing the evaluation to their insurance company. While this may have initial fiscal appeal, it is not recommended, as it does not allow the attorney to develop a good working relationship, may require the neuropsychologist to testify regarding a condition that individual may feel competent to assess but not really considered an area of legal expertise, and, worse, the neuropsychologist may feel blind-sided and deceived, creating mistrust of the attorney and patient. Also, studies show that neuropsychological reports written for legal cases typically are longer and more comprehensive (in order to fend off anticipated challenges to conclusions), are more likely to use diagnostic codes, are tailored to the nature of the referral question, and written in a manner most likely to be understood and appreciated by the legal audience (vs. medical providers).²⁶ Given the magnitude of damages sought and awarded in the legal arena and the impact a neuropsychological evaluation can have on the outcome, the initial cost of a neuropsychological evaluation is relatively small. By being forthright from the outset, an attorney can create a positive working relationship with a neuropsychological expert and obtain the report of an evaluation crafted specifically for the courtroom.

The neuropsychologist, on the other hand, will need certain things provided by the attorney to conduct a proper evaluation. Initially, attorneys should present a basic description of pertinent issues. This way, the expert can determine whether the issues are within his or her area(s) of expertise. For example, not all neuropsychologists feel comfortable testifying about cognitive sequelae of exposure to lead. Additional things needed include all pertinent medical records, school/work records, depositions already taken place and a list of those anticipated, the attorney's theory of the case, and discovery deadlines.

VI. Summary

Neuropsychologists are a unique resource in the legal arena. It is important that attorneys find qualified neuropsychologists to serve as expert witnesses, which may involve some research on the attorney's part. However, selecting an expert who has proper training, experience, and credentials is the best way of obtaining a valid evaluation, useful consultation, and credibility in the courtroom.

Footnotes

¹ Daniel Orme and George ("Brick") Johnstone are faculty in the Department of Health Psychology, University of Missouri – Columbia. Dr. Orme received his doctorate in counseling psychology from Indiana State University, completed internship at Wilford Hall USAF Medical Center, and a clinical neuropsychology residency at the University of Oklahoma Health Sciences Center. Dr. Johnstone is a graduate of the University of Georgia's doctoral program in clinical psychology and completed both his internship and clinical neuropsychology residency at the University of Washington. Drs. Orme and Johnstone are board-certified by the American Board of Clinical Neuropsychology/American Board of Professional Psychology (ABCN/ABPP).

² Landers v. Chrysler Corp., 963 S.W.2d 275 (Mo. App. E.D. 1997).

³ Neuropsychology For Clinical Practice: Etiology, Assessment, and Treatment (Russell Adams et al. 1996).

⁴ Forensic Neuropsychology: Fundamentals and Practice 419 (Jerry J. Sweet, ed., 1999).

⁵ J. S. Taylor, J. Elliott, & J. A. Harp, Neuropsychologists and Neurolawyers, 5 Neuropsychology 293-305 (1991).

⁶ 4 C.S.R. § 235-5.030. Also found at http://www.sos.mo.gov/adrules/csr/current/4csr/4c235-5.pdf.

⁷ B. Axelrod, J. Barth, D. Faust, J. Fisher, R. Heibronner, G. Larrabee, N. Pliskin & C. Silver, Definition of a Clinical Neuropsychologist, 3 The Clinical Neuropsychologist 22 (1989).

⁸ Id.

⁹ Id.

¹⁰ Id.

¹¹ National Academy of Neuropsychology, Definition of a Neuropsychologist, at www.nanonline.org/content/pages/prof/defneuropsych.shtm.

¹² H.J. Hannay, L.A. Bieliauskas, B.A. Crosson, T.A. Hammeke, K. Hamsher & S.P. Koffler, Proceedings: The Houston Conference on Specialty Education and Training in Clinical Neuropsychology, 13 Archives of Clinical Neuropsychology 157-249 (1998). See www.nanonline.org/content/pages/prof/houston.shtm.

¹³ Id.

¹⁴ Id.

¹⁵ Id.

¹⁶ Id.

¹⁷ Alfred Ardila, The Houston Conference: The Need for More Discussion, 12 Neuropsychology Review 147 (2002).

¹⁸ The Practice of Forensic Neuropsychology: meeting Challenges in the Courtroom 117, 123 (Robert J. McCaffrey, Arthur D. Williams, Jerid M. Fisher & Linda C. Laing, eds., 1996).

¹⁹ http://www.theabcn.org.

²⁰ http://www.abpn.net.

²¹ http://www.abpp.org.

²² Kenneth Adams, Comment on Ethical Considerations in Forensic Neuropsychological Consultation, 11 The Clinical Neuropsychologist 294 (1997).

²³ Thomas J. Guilmette & Leigh D. Hagan, The Ethical Neuropsychologist/Courting the Clinician: Ethical Considerations in Forensic Neuropsychological Consultation, 11 The Clinical Neuropsychologist 287 (1997).

²⁴ Muriel Lezak, Neuropsychological Assessment 165-168 (Oxford University Press 1995).

²⁵ The Practice of Forensic Neuropsychology: Meeting Challenges in the Courtroom (Robert J. McCaffrey, Arthur D. Williams, Jerid M. Fisher & Linda C. Laing eds., 1997).

²⁶ Jacobus Donders, A Survey of Report Writing by Neuropsychologists, II: Test Data, Report Format, and Document Length, 15 The Clinical Neuropsychologist 150-61 (2001).

Appendix

VI. Knowledge Base

. . .

1. Generic Psychology Core

1. Statistics and methodology

2. Learning, cognition and perception

3. Social psychology and personality

4. Biological basis of behavior

5. Life span development

6. History

7. Cultural and individual differences and diversity

2. Generic Clinical Core

1. Psychopathology

2. Psychometric theory

3. Interview and assessment techniques

4. Intervention techniques

5. Professional ethics

3. Foundations for the study of brain-behavior relationships

1. Functional neuroanatomy

2. Neurological and related disorders including their etiology, pathology, course and treatment

3. Non-neurologic conditions affecting [central nervous system] functioning

4. Neuroimaging and other neurodiagnostic techniques

5. Neurochemistry of behavior (e.g., psychopharmacology)

6. Neuropsychology of behavior

4. Foundations for the practice of clinical neuropsychology

1. Specialized neuropsychological assessment techniques

2. Specialized neuropsychological intervention techniques

3. Research design and analysis in neuropsychology

4. Professional issues and ethics in neuropsychology

5. Practical implications of neuropsychological conditions

VII. Skills.

. . .

1. Assessment

• Information gathering

• History taking

• Selection of tests and measures

• Administration of tests and measures

• Interpretation and diagnosis

• Treatment planning

• Report writing

• Provision of feedback

• Recognition of multicultural issues

2. Treatment and Interventions

• Identification of intervention targets

• Specification of intervention needs

• Formulation of an intervention plan

• Implementation of the plan

• Monitoring and adjustment to the plan as needed

• Assessment of the outcome

• Recognition of multicultural issues

3. Consultation (patients, families, medical colleagues, agencies, etc.)

• Effective basic communication (e.g. listening, explaining, negotiating)

• Determination and clarification of referral issues

• Education of referral sources regarding neuropsychological services (strengths and limitations)

• Communication of evaluation results and recommendations

• Education of patients and families regarding services and disorder(s)

4. Research

• Selection of appropriate research topics

• Review of relevant literature

• Design of research

• Execution of research

• Monitoring of progress

• Evaluation of outcome

• Communication of results

5. Teaching and Supervision

• Methods of effective teaching

• Plan and design of courses and curriculums

• Use of effective educational technologies

• Use of effective supervision methodologies (assessment, intervention, and research)

Quoted from The Houston Conference on Specialty Education and Training in Clinical Neuropsychology by H. J. Hannay, et al. © National Academy of Neuropsychology, 1998.

JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 4 - July-August 2003