Neuropsychological Aspects of Brain Injury Litigation

A Medicolegal Handbook for Lawyers and Clinicians

Phil Moore, Shereen Brifcani, Andrew Worthington, Phil S. Moore, Shereen Brifcani, Andrew Worthington

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000509663
• Edition: 1
• Topic: Psychology
• Subtopic: Neuropsychology
• Index: Psychology

This accessible handbook focuses on the importance of neuropsychological evidence and the role of the neuropsychologist as expert witness in brain injury litigation.

This thorough, evidence-based resource fosters discussion between the legal profession and expert neuropsychological witnesses. The chapters reflect collaborations between leading personal injury lawyers and neuropsychologists in the UK. Key issues in brain injury litigation are addressed that are essential to an understanding of the role of the neuropsychologist as expert witness and of neuropsychological evidence for the courts. These include neuropsychological testing, assessment of quantum, vocational rehabilitation, mental capacity, forensic outcomes, the frontal paradox, mild traumatic brain injury and more.

Combining the scientific and legal background with practical tips and case examples, this book is valuable reading for legal professionals, particularly those working in personal injury and clinical negligence, as well as trainees, students and clinicians in the field of neuropsychology, neurorehabilitation and clinical psychology.

1IntroductionNeuropsychological aspects of brain injury litigation: a medicolegal handbook for lawyers and clinicians

Phil S. Moore, Shereen Brifcani and Andrew Worthington

DOI: 10.4324/9781003105763-1

Opportune gap

For some time, the editors have been aware of the paucity of accessible medicolegal-based neuropsychological literature. Much of the existing literature is US focused and not entirely applicable to medicolegal neuropsychology practice in the UK. There have been many successful high-quality, professional development brain injury events between lawyers, neuropsychologists and other clinicians. Yet there are few accessible handbooks which cover brain injury from the perspectives of both lawyers and neuropsychologists. This opportune gap in the literature generated enthusiasm from both professions. As editors we have learned a great deal from these collaborations and although we have had to prioritise the focus of the book to the title in hand, we consider the main topics provide good breadth. Along with a dual legal-neuropsychology authorship, the book aims to attract a broad readership, with the content being of interest to the wider range of professionals working in brain injury litigation.

Central themes

Many neuropsychologists refrain from referencing literature within medicolegal reports because it often seems that every written word can be critiqued, sometimes correctly, sometimes unfairly. The clinical literature has developed to the point where almost any opinion can be countered by a brief Google Scholar review. Therefore, it is important to appreciate that the opinions in this book are a considered, balanced interpretation, true to the author at the time of writing and no more. There will continue to be differences of opinion amongst lawyers and experts within their own professions and beyond, and where possible we have tried to reflect this range of opinion within the chapters which follow, aided by exploring differences of view between authors in the process of writing the book. Opinions are not immutable and this will be apparent in some chapters that explain how ideas in the literature have developed over time. Opinions are, however, what matters to court and the book is united by a few central themes: impartiality, balance, evidence-based reasoning and the biopsychosocial framework.

As we shall explore within this book, the UK civil legal system is inherently adversarial. This means that neuropsychologists acting as experts must constantly adhere to the highest professional standards, deploying complete independence and impartiality in an increasingly accountable system. The contributors of this book were carefully chosen on this basis. Each chapter has been edited to ensure an evidential approach, reflecting a critical and balanced review of the available literature. The perspective of the book takes a biopsychosocial view of brain injuries and the people who sustain them.

Chapter structure and contributors

The book starts with a legal introduction co-written by Henry Charles QC of 12 Kings Bench Walk and Ruth Johnson of Irwin Mitchell Solicitors. This brings to life the fundaments of the law as it applies to litigation and how the expert neuropsychologist contributes to this process. The book is then arranged into three parts which should be familiar to seasoned expert neuropsychologists and lawyers: Part 1: “‘But for’ the brain injury and causation”; Part 2: “Current condition”; and Part 3: “Loss, disability and impact”. Case examples have been used to illustrate certain points, basing relevant arguments on real-life cases from personal injury and clinical negligence.

Part 1: ‘But for’ the brain injury and causation

The ‘but for’ starts with the neuropsychological-based topic of premorbid ability, expertly described and critiqued by Professor Martin Bunnage, who is joined by Marc Willems QC of Cobden House Chambers to traverse the legal implications. There follows a critical examination of neuropsychological tests by Professor Andrew Worthington and Dr Phil S. Moore. Finally, Hope Kent, Dr James Tonks and Associate Professor Huw Williams frame our understanding of paediatric outcomes after traumatic brain injury discussing social and forensic risk management in multidisciplinary treatment approaches with Ian Brownhill of 39 Essex Chambers providing special interest legal commentary.

Part 2: Current condition

This part starts with Dr Simon Gerhand then tackling the topic of symptom validity with Dr Chris Jones and Dr David Hacker. They discuss its importance in contextualising the role of different factors where a person’s effort or symptom severity may be under question. Professor Andrew Worthington and Dr Phil S. Moore then take the growing issue of mild traumatic brain injury and critically explore persistent symptoms which can often accompany litigation claims. The frontal paradox phenomenon is critically reviewed by Dr Samantha Fisher-Hicks and Professor Rodger Ll Wood, who are joined by Bill Braithwaite QC of Exchange Chambers to provide some legal context.Ian Brownhill of 39 Essex Chambers concludes part 2 by providing expertise in his law-led chapter on the very important issue of capacity, including the two aspects central to brain injury litigation: financial decisions and litigation decisions.

Part 3: Loss, disability and impact

Principles of quantum are methodically described by William Latimer-Sayer QC of Cloisters in the first chapter within this section. This is followed by a chapter which addresses the application of these principles in practice, authored by Professor Andrew Worthington William Latimer-Sayer QC, and Dr Andy Tyerman.

The editors finish by synthesising the content of the book. A framework for medicolegal formulation is proposed to draw together chapter content as it applies to understanding brain injury sequelae. Key points from chapters are identified, along with those areas that require further exploration.

2Legal principles in litigation

Henry F. Charles and Ruth Johnson

DOI: 10.4324/9781003105763-2

What the lawyers want to know, and when

Lawyers work to a template: How to prove a case at trial (claimant), or conversely, how to prevent a claimant proving his or her case at trial (defendant).

It never hurts to remember that the claimant must prove his or her case on the balance of probabilities, but that within that scenario there is a process akin to legal ping-pong. If the claimant’s team put forward a respectable case on, say, capacity, and the defendant puts an equally respectable case in reply, then the claimant’s team have work to do.

In a brain injury case the lawyers will want to know:

1. The claimant’s pre-injury capability for work, including future career prospects
2. Whether the claimant had any pre-existing impairments, the extent of such impairments, and how they impacted upon day-to-day life
3. In comparison, what the claimant’s prospects for work/future career are now
4. Any care or case management needs flowing from the brain injury
5. Whether the claimant has capacity to litigate and whether the claimant has capacity to manage his or her affairs going forwards

There will be a significant pressure upon the lawyers for the claimant to acquire this knowledge as quickly as possible. The defendant will have the option of making an early offer to settle, ¹ and the claimant’s lawyers will want to scope out what evidence is likely to be needed so that when proceedings are issued they are in a position to drive the litigation forwards.

1 Although in serious cases the Serious Injury Protocol will in theory ease the pressure.

Before even that stage of issuing and serving proceedings the claimant will be expected to set out its case in a pre-action protocol letter. The letter should contain the date and details of the decision, act or omission being challenged, a clear summary of the facts and the legal basis for the claim. It should also contain the details of any information that the claimant is seeking and an explanation of why this is considered relevant.

Where neuropsychological evidence fits in practice

Assuming that the injury is of some significance then the neurologists will start by identifying the brain injury using medical knowledge, and will typically rely upon neuropsychologists to provide an opinion regarding the validity, nature and extent of neuropsychological injury, and impact upon the claimant’s functioning, prognosis, capacity and psychological wellbeing. This includes the claimant’s pre-injury status, current functioning, and recommendations for treatment. A neuropsychiatrist’s opinion may also be sought when there is a potential significant interaction with psychiatric issues, historical and/or current, but will similarly rely on neuropsychological opinion.

The cases involving severe injury are relatively straightforward, so long as there were no neurological or psychiatric issues prior to the brain injury being acquired, and the victim was in settled employment.

The cases that really cause difficulty are the mild traumatic brain injury (TBI) cases. These have grown more prevalent and prominent in the last decade or so. The diagnostic difficulties attached to a number of these cases, the developing scientific literature, the potential for overlap/confusion with psychiatric injury and the potentially adverse impact of telling someone he or she has a brain injury mean that any objective information is critical. Neuropsychological assessment can provide at least some improved clarity with regard to cases involving entangled causation.

So the golden thread is that causation is key.

Some basic legal principles

The court makes findings on the balance of probabilities.² Once breach of duty has been established: the focus turns to causation, i.e. what the result of the breach of duty has been.

An award of damages is intended to compensate the claimant for pecuniary and non-pecuniary losses resulting from the defendant’s tort (i.e. wrongdoing). The aim is to award a sum of money that will put the injured party into the same position as she or he would have been if she or he had not sustained the wrong for which compensation is being awarded.³

2 As ever with law, this is nuanced: so where the question is one of past facts then mere balance of probabilities is the test, where the question is one of what hypothetically might have been then to the extent that the chance of an event falls significantly below 100% the award will be discounted. 3 Perhaps the best known statement of the principle was from Lord Blackburn in Livingstone v Rawyards Coal Co [1880] 5 App Cas. 25.

The basic test is the ‘but for’ test, in which the defendant will be liable only if the claimant’s damage would not have occurred ‘but for’ his negligence. Neuropsychology can be helpful in establishing the ‘but for’ position and if there are factors which superimpose a brain injury.

Establishing the ‘but for’ counterfactual position has given the courts huge difficulty as a matter of law and practice.

Firstly, what is the position where someone was very vulnerable, perhaps exquisitely vulnerable, to a brain injury, for example due to having a thin skull? A person committing the wrong has to take the victim as found: the so-called eggshell skull rule – which is not limited to eggshell skulls. For example in Smith v Leech Brain & Co⁴ a factory worker was splashed with molten metal, burning his lip. His lip happened to have pre-malignant cells, malignancy was triggered, the factory worker died, the defendant had to pay up.

If a claimant – having been knocked off a bicycle – suffers much greater neurological damage than the ‘ordinary’ person, that is the defendant’s misfortune. That said, in eggshell skull cases, a defendant might try and prove that sooner or later the claimant would have suffered some or equivalent damage.

Neuropsychological evidence is less likely to be involved on such matters, but it takes centre stage where there was already damage.

In Reaney v University Hospital of North Staffordshire NHS Trust & Another⁵ the claimant went into hospital suffering T7 paraplegia. Plainly this permanent condition caused various care and care-related requirements – a few hours of care per week rising to 31.5 hours of care per week after the age of 75 would have given her a largely independent life. Unfortunately, whilst in hospital she developed grade 4 pressure sores, with very adverse effect. There was no dispute that the claimant was going to have increased care and related needs because of the impact of the pressure sores (which should not have developed, and in respect of which the hospital had accepted liability).

The High Court Judge (Foskett J) held that the claimant now essentially needed 24-hour care. He further held that the hospital was liable in respect of all future care needs, even though the claimant would have required care in the future, irrespective of the development of the pressure sores. His logic was that the wrongdoer must take the victim as he finds him and if that involved making the current damaged condition worse, then the wrongdoer had to fully compensate the worsened condition. Thus being totally deaf was far worse than being half deaf, so an otherwise modest negligently caused additional hearing loss might have a disproportionate effect. In other words, 2 + 2 can equal 5.

4 [1962] 2QB 405. 5 [2015] EWCA Civ 1119.

Foskett J held that the additional damage of the pressure sores meant that Mrs Reaney’s care needs were now materially different. He also invoked an alternative argument, to which we shall return shortly: the hospital had ‘materially contributed’ to the ov...