If the defendant in your personal injury case has requested that you submit to psychological testing, you may be wondering what to expect. There are many variations of psychological and neuropsychological tests, and many ways to administer and score those tests. The most commonly administered tests include:
- Beck Depression Inventory; Beck Anxiety Inventory
- Folstein Mini Mental Status Exam
- Halstead-Reitan Neuropsychological Battery
- Luria-Nebraska Neuropsychological Battery
- Minnesota Multiphasic Personality Inventory 2 (MMPI-2)
- Personality Assessment Inventory III
- Millon Clinical Multiaxial Inventory (another personality inventory)
- Rorschach Ink Blot
- Wechsler Memory Scale (“WMS”) III
- Wechsler Adult Intelligence Scale (“WAIS”) III
We will discuss a few of these tests in detail here.
Beck Depression Inventory; Beck Anxiety Inventory
The Beck Depression Inventory (“BDI”) is a simple test, consisting of 21 multiple-choice questions, designed to determine if you are depressed and, if so, to what extent. Similarly, the Beck Anxiety Inventory (“BAI”) consists of 21 multiple-choice questions designed to determine if you are suffering from anxiety disorder and, if so, to what extent. Both tests take 5 to 10 minutes to administer and are self-reporting tests. A self-reporting test is a test (a survey or questionnaire) that you complete on your own, using your own judgment about your behaviors and traits.
The problems with self-reporting tests are many. One common problem involves brain injuries. If the person taking the test has suffered a brain injury, then he or she may lack the self-awareness necessary to answer the questions honestly and accurately. For example, this individual could be extremely depressed, but if you asked him how he felt, he would say, “Fine.” If, however, this person was given other tests, his or her true emotional condition might be teased out.
A second problem with self-reporting tests involves the nature of the questions. The questions are not very subtle and, consequently, can be easily manipulated (i.e., faked). Cultural issues may come into play here. For example, in certain cultures, the concept of mental illness has tremendously negative connotations. Therefore, many people who are genuinely mentally ill might deny psychiatric problems because of cultural bias. Both the BDI and the BAI scales (test questions) are so transparent they could be easily manipulated by individuals fearing the label of mental illness.
A third problem with self-reporting tests is that the results can be easily manipulated by the defense. If, for example, you have an elevated score consistent with severe depression, the defense might claim that the test is irrelevant because it is only a self-reporting test. If, on the other hand, your score is low, the defense might choose to rely on this test and argue that your scores are inconsistent with depression.
Personal injury attorneys can address the problems with the BAI and BDI by carefully reading the defense doctor’s report, noting what is in the report and what was left out of the report. Then, on cross-examination, a well-prepared personal injury attorney might ask the defense medical doctor questions about the report, similar to the following:
(Note: All of the following questions refer to the “BDI” and “depression.” If you took the Beck Anxiety Inventory, your personal injury attorney would ask about “BAI” and “anxiety.”)
If the test score reveals significant depression:
Q: Doctor, what is my client’s score on the Beck Depression Inventory (“BDI”)?
Q: Doctor, his score is within the “severely depressed” range, isn’t it?
Q: This is the only test you gave for depression, right?
Q: So the only test you gave for depression clearly shows depression, but you did not diagnose depression?
Q: Doctor, is it common for you to ignore your own test results?
Q: Doctor, you have testified for the defense in other cases in which the BDI score was low, correct?
Q: In those cases you testified that the low BDI score was evidence the plaintiff was not depressed, isn’t that right?
Q: So, when the BDI scores are low, you rely on the test to make a claim of “no depression,” but now, when the test scores are high, you choose to ignore the results and claim the test is irrelevant?
If the test score is low, and the defense doctor has ruled out depression because of that low score:
Q: Doctor, you have testified for the defense in other cases in which the BDI score was elevated, correct?
Q: Do you deny testifying in those cases that the elevated BDI score was not evidence of depression because it was only a self-report?
Q: So, you didn’t rely on the test when the results were elevated, but now, when the test score is low, you are relying on the test and trying to claim it means no depression?
Q: Doctor, if my client told you he was depressed, would you automatically just diagnose him with depression?
Q: So if he says he’s not depressed, would you automatically conclude he’s not depressed?
Q: If you simply agree with the patient’s own diagnosis, then there really is no need for a psychiatric evaluation in the first place, is there?
Q: Doctor, this test is pretty self-evident, isn’t it?
Q: If my client has a lack of self-awareness due to brain injury, lack of education, lack of emotional maturity, he may not even know he is depressed, right?
Q: So a score that is low does not rule out depression, it just reflects how my client felt at that moment in time on the day he answered those questions, right?
Q: Doctor, it is true, isn’t it, that some people may actually be unaware of their own emotions, correct?
Q: For example, brain damaged individuals can suffer from alexithymia or unawareness of their own emotions, isn’t that true?
Q: Such a person may very well be extremely depressed, but have brain damage that interferes with his insight to his own emotions, and consequently score very low on this test, yet be very depressed, correct?
Q: Doctor, some people are embarrassed to admit they are suffering from symptoms of mental illness, aren’t they?
Q: Isn’t it true that some people “under-report” symptoms? [Note: There are many potential reasons a person might “under-report” or downplay his or her symptoms. Perhaps he is trying hard to believe he is not depressed or anxious. Some people fear being involuntarily institutionalized if they admit the true severity of their symptoms. Others fear retribution or humiliation by friends, family members, co-workers, or employers. Bottom line: the defense doctor should not automatically conclude that the person taking the test is not depressed, even if the test score is low, and especially if he or she was somewhat defensive in taking the test.]
Q: A 40-year-old, tough construction worker may not like admitting he has problems and sometimes feels powerless and hopeless, correct?
Q: So, a man like that could score out as not depressed or anxious but, in reality, be both, correct?
Q: Some cultures view mental illness as a demeaning and humiliating disease, correct?
Q: So cultural aspects may also interfere with an individual’s ability to admit to symptoms of depression, right?
Q: Doctor, are you aware that my client is taking anti-depressants?
Q: Isn’t it possible that his low BDI score means that my client’s medications are working?
Q: Did you ask him about side-effects of his medications?
Q: Surely you don’t opine my client has nothing wrong with him if he is required to take chemicals on a daily basis to keep his depression symptoms at bay, correct?
Q: And you are not suggesting he stop the medications now, are you?
Folstein Mini Mental Status Exam
The Folstein Mini Mental Status (“MMSE” or “MSE”) test is used by psychiatrists to evaluate memory or concentration problems. The test was developed for Alzheimer’s patients, not for patients with subtle memory and concentration problems secondary to brain injury or depression. Nevertheless, some defense medical experts will rely on it to deny claims for brain damage, depression, anxiety, PTSD and a whole host of other conditions for which it was never developed.
The questions on the MMSE include simple math or verbal exercises. This test requires numerical scoring, but it does not require much sophistication or knowledge of testing and measurements in order to administer the test.
If you are given the MMSE as part of a defense medical examination, your personal injury attorney might ask the defense doctor the following questions on cross-examination:
Q: Doctor, did you administer a mini mental status test to my client?
Q: Was the exam you administered accompanied by a test manual, so we can see if this test was administered and scored properly?
Q: Doctor, without a standardized method of scoring and administering the test, you can claim the test means anything you want, can’t you?
Q: You could claim to give a cognitive test that merely asks the patient to state his name, and then conclude that “test” permits you to rule out brain damage, couldn’t you?
Q: Can you provide me with the name of any publication in any journal that supports the manner in which you administered and interpreted this “test”?
Q: Did you give my client the entire test?
Q: Did you score the test?
Q: What was my client’s score? [If the defense medical doctor did not score the test, why not?]
Q: Doctor, people with [brain damage, depression, PTSD, etc.] can have problems remembering things for more than 5-l0 minutes, can’t they?
Q: For example, someone might remember something for a few minutes but not for more than a few hours or a day because of depression, pain, medication, brain damage, etc., right?
Q: Doctor, this “exam” did not test my client’s long-term memory at all, did it?
Q: In fact, the longest you asked my client remember anything was 5 minutes, right?
Q: Now, frankly, doctor, a 7-year-old could do that, couldn’t he?
If the defense medical doctor claims this test shows you have perfectly normal cognition and nothing is wrong with you, your personal injury attorney can challenge that notion on cross-examination, as follows:
Q: This test does not measure irritability, does it?
Q: This test does not measure depression, does it?
Q: This test does not measure how someone handles interruptions on the job does it?
Q: This test does not measure how someone deals with frustration caused by others, does it?
Q: You asked my client to perform simple math as part of this “test” correct?
Q: Again, a 7-year-old could do that, isn’t that true?
Q: Doctor, are you aware that, according to the American Academy of Neurology, the accuracy of the brief screening test you gave my client in recognizing brain damage is as low as 49%?
Q: That’s about like flipping a coin, isn’t it?
Q: Are you aware that a mini mental status exam, rather than a complete neuropsychological battery, has only a l0th % predictive value?
Q: That’s not very scientific, is it?
Q: Doctor, where in the test administration and scoring manual does it state that this test should be used to evaluate [e.g., RSD, depression, brain damage, etc.]?
Q: Doctor, there is no test manual that lets you rule out my client’s condition [RSD, depression, brain damage, etc.] by giving this test because it doesn’t test for it, isn’t that correct?
Q: So, you ruled out my client’s condition by giving a test that doesn’t test for it, right?
Q: Isn’t that like looking at an x-ray of the knee and saying it proves the elbow’s not broken?
Halstead-Reitan Neuropsychological Battery
This is one of the most commonly administered neuropsychological batteries in the world. (This test does not test for depression or anxiety or other psychiatric conditions.) The scores from five core tests (the “test battery”) will determine impairment. The tests are subject to strict administration standards.
Despite these strict standards, some defense medical doctors will give only part of the battery. They will claim they administered “neuropsychological tests,” but leave out those portions of a battery most likely to reveal impaired scores consistent with brain damage. If the doctor gives what he terms a “flexible battery” of tests (i.e., picking and choosing from various other tests or sub-tests), no published data will be available to establish the reliability of the chosen tests when given in combination. However, such statistics do exist for rigid or fixed batteries, such as the Halstead-Reitan Neuropsychological Battery (“HRB”).
A defense medical doctor who does not administer the entire battery of tests will have to admit on cross-examination that the instruction manual said to administer the entire test, and that he failed to follow the instructions. The doctor also will have to admit that it is possible to know which sub-tests in the Halstead Reitan battery are most sensitive to a person’s condition and to choose not to give those sub-tests. In order to gain these admissions, a personal injury attorney might ask questions similar to the following on cross-examination:
Q: Doctor, did you give the entire Halstead-Reitan battery of tests?
Q: Doctor, it is possible to know the kind of brain damage someone has and choose not to administer a test more sensitive to picking upon that kind of damage, isn’t it?
Q: Doctor, tell me the names and functions of the tests you left out.
Q: Isn’t it true that the American Psychological Association (“APA”) indicates that doctors like yourself should administer tests in a scientifically reproducible and reliable manner?
Q. Doctor, if you don’t follow the standardized methods for reaching conclusions, as set forth in the test manual, then you could claim this test means anything you want it to, correct?
Q: Doesn’t the administration manual clearly state that the entire core battery should be given?
Q: You would agree, doctor, that when you administer the entire test battery, the final score is known as the Global Neuropsychology Deficit Scale (“GNDS”), which indicates the degree of cognitive impairment?
Q: Isn’t it true that you did not give my client the entire test because if you had, you would have a GNDS indicating his degree of cognitive impairment, and you didn’t want to risk your own test data supporting brain damage?
Q: Doctor, you don’t have a GNDS in this case, do you?
Q: Doctor, since you did not administer the entire battery, you have no published data that tells us the sensitivity or specificity of your test results, isn’t that right?
Q: There is, though, published data like that for the whole Halstead-Reitan battery, isn’t there?
Q: Doctor, I want you to tell me, with regard to each and every test and subtest you administered to my client, what percentage my client fell in.
Q: He was in the bottom 5% on this test, but you claim that’s normal?
Q: That means that 95% of the population did better on this test than my client did, doesn’t it?
Q: But you claim that’s “normal”?