By Dorothy Clay Sims

Excerpted from Exposing Deceptive Defense Doctors

Of all the specious and damaging claims a defense doctor can make, the allegation that your client is exaggerating or malingering is the most mean-spirited of all.

When you think about it scientifically, the malingering claim made by certain DME’s under certain circumstances is outright absurd, and you can prove it. Forget trying to score points by asking the doctor to make some concessions. That shows the jury you actually care about what the DME says. You don’t because it’s irrelevant and untrue.

Don’t engage in a debate, lend credibility to this absurd claim, or ask him to admit such-and-such an article is critical of the test.

Games DMEs Play

Several years ago I started keeping a list of things I observed during cross-examination that I felt were manipulative on the part of the doctor. That list has grown and continues to grow. I see the most manipulation surrounding the topic of malingering and/or exaggeration. Sadly, each of the following examples of manipulation of data and test results actually happened in real cases.

A. Games During Test

1. Gives Clues, or Worse, Provides Answers

Some doctors will provide significant clues to the patient, and then opine a good score means no brain damage. For example, a doctor may ask the patient to name all the presidents of the United States backwards, and then help the patient by asking, “Who was the peanut farmer from Georgia?” Some DMEs will take this one step further. They will stop the test, give the patient the answers, then start the test over. Children, shy persons and brain-injured persons can be particularly susceptible to this. In one case, a psychologist tested a child. The child was flunking the test miserably, falling clearly in the impaired range, so the doctor told the child the correct answer, then asked the child the question again, and scored the correct answer. Also, look to see if the doctor asks the question several times because he is looking for a different answer.

The best way to find out if clues were given is to review the transcript if you are allowed to record the examination. If not, ask questions at deposition about the DME’s test methodology/protocol to dig out this information. For example:

Q:   Doctor, did you assist my client with any of the answers in any of these tests?

Q:   Did you ask any question a second time (or more than twice) after my client already had answered the question?

Q:   Did you write down every single exact response given by my client?

Q:   Did you start the test, stop it, give my client clues, and then start the test over again?

Q:   Please show me the handwritten notes in the scores by the individual who actually administered and interpreted the test.

Q:   Did you give my client several chances to get the answer correct?

2. Skips Questions on the Test

This usually is done by a psychometrician lacking proper training or experience, or by a doctor who might be concerned about the patient’s answer. Brain-injured individuals, people with dyslexia or individuals with visual problems may make mistakes and skip questions, but a good psychologist should catch the error.

This is best discovered by providing the raw data to your expert and asking her to review it carefully to make sure there are no blanks or empty spaces where answers should be written. Then, at deposition, you can ask:

Q: Doctor, show me in the test manual where it says that it is appropriate to skip questions and still reach a scientific conclusion?

Q: Where do you admit in your report that my client did not respond to all the questions that were given?

Q: Did you make any attempt to have my client come back and complete the test?

Practice Point:

Negotiate reduced fee for raw data review?

It is much cheaper to have a psychologist review the raw data for skipped questions than to try to figure this out yourself. Try to negotiate a deal, such that you pay the on-site psychometrician charges, plus a little something extra, rather than the psychologist’s regular hourly rate. For example, if the psychologist charges $400.00 per hour and pays his psychometrician $15.00 per hour, and you have enough business to send, perhaps you could negotiate a rate $75.00 per hour, if the work is done only by the psychometrician. It’s worth a try.

Practice Point:

Depose psychometrician.

Another approach is to depose the psychometrician. A psychometrician is an individual whom the psychologist pays to give and score the test. You may wonder why the psychologist does not administer the test himself. The answer is that it’s not economically feasible. (One doctor admitted that while he is in one room working on a case and billing at his usual hourly rate, the psychometrician, whom he pays $15 an hour, is in another room conducting testing on a separate case, which the doctor bills out under his name at his hourly rate. This is essentially double-dipping.) Very often, the psychometrician does not have a Ph.D. or a Masters degree. You may even find that the individual administering the test has only a high school degree. Psychometricians may not have proper training, may add the scores incorrectly, may be frustrated with your client, and may be short, snippy, or even rude. All of this behavior can affect your client’s test results. When you depose the psychometrician, you can ask about his training in administering the tests, and find out why certain tests were given. Ask about the instructions he was given by the DME. In one case, the psychometrician admitted that the doctor had instructed her to advise him, before the report was written, whether the plaintiff had been sent by a plaintiff’s lawyer or a defense attorney. There can only be one reason for that, and we all know what it is.

3. Manipulates Timing of Test

Some doctors give malingering or effort tests right before lunch to a hungry hypoglycemic patient, or at the end of two days of grueling testing when the plaintiff is sick of the whole thing.

Ask the DME directly: “Doctor, when was this alleged malingering test given?” He will probably have no clue. To conclude malingering based on a poor score on a malingering “test” administered right before lunch to a hungry claimant might be somewhat unscientific and even unfair.

4. Gives Test Too Many (or Too Few) Times

Some test protocols suggest several trials of a test should be administered. Some doctors will administer only one or, if the test results are hurtful to the side retaining them, they will keep administering the same test until the plaintiff does poorly, and then report only the poor scores (or until the plaintiff does better and report only the good scores).

5. Testing Differently Depending on Whether Case Is Referred by Plaintiff’s or Defense Attorney

I know one doctor who, if the patient is referred by the plaintiff’s lawyer and does poorly on malingering scales, will call the plaintiff’s lawyer, have a little chat, and arrange for the patient to retake the test the next day. If, on the other hand, the defense refers a patient who does poorly, this same doctor will not even suggest retaking the test (and will refuse to permit this), and simply conclude malingering. If you have prior evaluations by the DME and you can determine who referred the cases, you may be able to compare the cases and see such a pattern.

Watch, too, for doctors who reach different conclusions regarding a particular test, depending on who referred the patient. For example, if the patient is referred by the defense, the DME will claim a poor score in the Word Memory Test indicates malingering; if, however, the patient is referred by a plaintiff’s lawyer, the DME will conclude a poor score on the Word Memory Test indicates brain damage.

6. Interferes With Testing

The doctor might accuse the plaintiff of exaggerating his inability to concentrate when, in fact, the doctor is the main cause for the concentration problems. In one case, the DME took six cell phone calls during the concentration portion of the test. Other issues that affect concentration include the doctor frequently walking in and out of the room in which the test is being given or refusing the patient a cigarette break. Mild TBI can cause concentration problems, but your client may score out as moderately brain injured depending on the doctor’s behavior. Ask your client whether the doctor interfered with anything during the testing, including moving frequently, coughing, laughing, etc.

7. Uses Old Tests

James R. Flynn discovered that IQ scores increased from one generation to the next for all of the countries for which data existed. This is what is now known as the Flynn Effect (1). Let’s say you are a defense doctor and you want to show a plaintiff does not have a brain injury. Administer an older version of a neuropsychological test, and the plaintiff will score higher, maybe even as “not brain injured.” Why? Because your client is being compared to an older, less intelligent sample. Demand the doctor use the most recent test (as required by the APA Code of Ethics) and the results may be strikingly different.

You can find out if the DME administered the most recent version of the test by Googling the test. For example, if you Google the Weschler Adult Intelligence Scale, you would find a reference to WAIS III, which indicates there is a third edition of the test. If the expert administered the WAIS or the WAIS-R, then he administered an older version of the test.

Q: Doctor, do you own the most current copy of the Weschler Adult Intelligence Scale?

If he does not:

Q: Doctor, don’t you want to stay current in your field?

Q: Did you ask the defense to pay for the most updated, current tests?

Q: Did you make any effort to obtain the most updated, current test?

If he does:

Q: So, doctor, you own the most current version of this test, but you chose to give an older version, correct?

Q: Doctor, isn’t it true that you gave the older version of the test so that my client would score out as less impaired?

Q: Doctor, are you familiar with the “Flynn effect”?

Q: Isn’t the Flynn effect the reason you give an outdated version of a test — so that my client will be compared to a less intelligent sample?

Q: Isn’t it true that his IQ scores would actually be lower than the ones you obtained if you used the more recent test?

Q: Where did you admit this fact in your report?

8. Gives Only Part of the Test

A DME may choose to give only part of a test — the part that does not test for the type of brain damage your client has. How do you beat this game? Get the test booklet/publications. For example, Dr. Reitan, creator of the Halstead-Reitan Battery (see Chapter 5, Psychological Tests, §5:14), indicates that giving only part of his test is unscientific. “The only authorized version of the HRB for adults is the one that duplicates the tests exactly as they were when the validation studies were done.(2)”

Q: Isn’t it true that a doctor can manipulate the results of a psychological test depending on how he administers and interprets the test?

Q: Isn’t it also true that the American Psychological Association suggests that psychologists administer tests in a scientifically reproducible manner and in accordance with the instructions of the test administration manual?

Q: Doctor, isn’t it true that you administered only part of the Wechsler Memory Scale when, in fact, the instructions clearly advise doctors to administer the entire test?

Q: Doctor, please get the manual for this test and show me where it says you are supposed to, or are even permitted to, administer only a portion of the test.

Q: Isn’t it true that a psychologist can know what subtests are more likely to reveal the patient’s condition and intentionally leave them out?

Q: Doctor, the statistics that tell us how reliable a particular fixed battery may be do not apply if you administer only a portion of the battery, isn’t that correct?

Q: You do not have statistics as to the reliability of the combination of subtests you gave, do you? [The DME’s answer to this question can serve as the basis for a motion to strike. If the doctor cannot tell you the statistical reliability of the combination of tests he gave, then there may be serious methodological flaws with any conclusions based upon that partial battery of tests.]

9. Gives Multiple Tests Instead of a Well-Validated Test Battery

The more a doctor picks and chooses subtests from an overall test battery instead of giving the entire test battery itself, the greater the potential for missing the condition in question. Many fixed batteries exist and are validated because the statistics tell us how accurate those tests are at diagnosing a certain condition, if the entire test is administered. If, however, the DME does not administer the entire neuropsychological fixed battery, then his methodology is unscientific and his conclusions are suspect. The draft code of ethics for the Coalition of Clinical Practitioners in Neuropsychology specifically suggests using a rigid battery of tests (3). Many doctors, however, will administer portions of batteries, and then compare them to different tests from different batteries. No conclusions should be made in such a manner, according to logic and the code of ethics.

Ask the DME if any publications provide the sensitivity and specificity test data, i.e., the data showing how accurate his chosen combination of tests is at diagnosing brain damage or ruling it out. (Caution: Do not ask about each individual test. Some will have published data on this issue. Ask about the combination of tests chosen.) Draw a bag. Put lots of dots in the bag. Then, ask the following:

Q: Doctor, these dots represent the tests you chose to give. How accurate is this bag of tests, taken as a whole, in ruling in or out brain damage?

Answer? No clue.

Q: Now, doctor, if you gave a standardized, or rigid, battery of tests, those figures do exist, don’t they? For example, there is published data on how accurate the Halstead-Reitan is in ruling in or out brain damage if you give the whole battery of tests, right?

Q: But there is no data on the accuracy of what you did, right?

Q: According to the draft code of ethics of the Coalition of Clinical Practitioners in Neuropsychology, what you did was unethical, right?(4)

10. Fails to Use Standardized Batteries

Standardized batteries of tests are well-validated, generally cover most types of brain damage, and have sensitivity/specificity data. Rather than use a standardized (also called a “rigid”) test battery, the defense doctor will test for conditions the patient does not have and leave out the tests for those conditions the patient does have. For example, let’s say your client has been diagnosed with PTSD by his treating psychologist. The defense doctor administers no PTSD tests or even those tests with PTSD components; instead, he tests for depression (which is not at issue) and then documents no questions about PTSD symptoms. His conclusion: no PTSD. Usually these DMEs never have to explain their behavior. Why? Because most attorneys don’t know that raw data can no longer be hidden pursuant to new HIPAA laws (5), and even if they got it, they wouldn’t understand it. Fortunately, the American Psychological Association now requires its release (6).

11. Does Not Administer Malingering Tests At All

If the doctor concludes malingering, but conducted no standardized malingering studies, what do you do? Point it out:

Q: Doctor, do you own tests used for malingering or response bias?

Q: You own them, but didn’t give them to the plaintiff?

Q: Could it be you were worried the plaintiff would pass?

B. Scoring the Tests

1. Gives Malingering Test, but Does Not Score It or Scores Only a Portion of It

If the doctor gives a malingering test and doesn’t score it, there is only one reason: the doctor could tell your client was going to pass the test. This is just plain wrong. Similarly, many tests have multiple components. Some doctors stop scoring a test if it looks like the plaintiff will end up with a score that will hurt the defendant’s position. This is just plain unethical.

2. Scores Test Incorrectly

For example, some doctors will score the tests and then testify that the patient scored out as “not brain injured” in concentration tests. However, the doctor input the wrong birth date, and thus compared the plaintiff to much older and feebler individuals. When the plaintiff’s correct birthday is input, the results indicate impaired cognition. Some doctors report incorrect scores because they simply add wrong.

3. Does Not Have Tests Computer-Scored

A computer-generated printout of your client’s scores may offer conclusions, such as “Patient may be depressed” or “Patient appears to answer questions in honest and straightforward manner.” The defense doctor who does not want those conclusions to appear in the file will hand-score the tests. This is most commonly found in tests like the MMPI-2. Defense experts will order what is known as the “extended” report, which does not include a narrative summary. See §5:27, Psychological Tests, Scoring in Exposing Deceptive Defense Doctors. The Minnesota Report, in contrast, provides the patient’s scores in the various scales and also contains a computer-generated narrative report. Defense experts don’t like the Minnesota report because it may box them in and because it is easier for plaintiff’s counsel to understand. For example, if the Minnesota report states that your client appears to be answering the questions in a valid manner and appears to be significantly depressed, you would understand how to approach your cross-examination. If, however all you received was a graph with letters and numbers (an extended report), your plan of attack might not be so obvious.

When you receive an extended report, go through every single score and ask the DME the name of the scale and the significance of your client’s score. For example, “Doctor, I’d like to go through each and every scale, and I would like to ask you what this scale measures, what the letter stands for, and what the score means.” If the doctor states, “Your client has T score on the D scale of 89,” make him explain what “D” stands for and what a score of “89” means. If the doctor doesn’t break it down for you or put it in his report, he may be hiding something.

4. Erases Answers

Some doctors erase the patient’s answers. This is why you always request the raw testing data. Look for erasure marks.

5. Gives “Test” With No Formal Scoring Manual (Not Really a Test At All)

When malingering “tests” are administered, always subpoena the test manuals. Why? Because often there aren’t any. There are no formal scoring manuals either. Translation: The doctor has every right to claim the tests mean anything he says they mean. Many states have codes of ethics requiring psychologists to rely upon adequately normed data (as does the American Psychological Association (7). So, not only is this method unethical, it is also not scientifically reproducible and is not permitted to make it to the jury. How do you find this out?

Q: Doctor, do you have a test administration and interpretation manual for the sentence completion test?

Q: Doctor, if there is no standardized administration and interpretation manual, then you can claim this particular “test” means anything you want, can’t you?

Q: So there really isn’t any difference between what you have done and a lawyer deciding that if you answer “true” to any of the following questions —

1. My mother had a higher pitched voice than my father.

2. When I didn’t get enough sleep, I was tired.

3. When I went too long without eating, I became hungry.

— then that is a scientific indication of a lack of depression, lack of PTSD, and lack of brain damage. Isn’t that right?

C. Reporting and Interpreting Test Results

1. Claims Malingering Based on Test That Is Not a Malingering Test

Often, bad doctors will ignore the multiple validity scales within these tests and claim malingering by relying on, say, poor scores on Trailmaking A (which is not a malingering test but, in fact, is a test of the executive function of the brain). Expose this dishonesty. For example:

Q: So, doctor, you gave my client the MMPI-2, correct?

Q: My client passed all validity scales, right? He passed the Vrin, Trin, L, K, Fp, Fb, and the F-scales, correct? (These are various validity scales within the MMPI-2, designed to determine whether the individual gave true effort and the test results are reliable. See §7:08, Exposing Deceptive Defense Doctors).

Q: Let’s see now, that’s seven different scales to tell us if the plaintiff is approaching the test in an honest and straightforward manner, and my client passed them all?

Q: But you conclude malingering depression based on the PASAT, which was never created as a malingering scale, has no manual permitting or even encouraging the test to be interpreted in such a way, does not have any standardized scoring manual, and does not test for depression, right?

If the doctor claims the test he administered actually was created for the purpose of determining malingering, have him read into the record what the test was created for, as indicated in the manual.

Here are a few examples of tests that defense doctors typically claims are malingering tests, but were never created for that purpose and have no scoring manual permitting that interpretation: Wisconsin Card Sorting Test; Oswestry (developed for the low back only); McGill Pain Scale; Modified Somatic Pain Questionnaire; and the Pain Disability Index. If your client does well on a particular test, the defense doctor won’t talk about it or will call it something else. If your client does poorly, the DME will use this as evidence of malingering.

2. Lies About Test Purpose

If your client does well on a malingering test (e.g., the Word Memory Test), the DME will claim it is a memory test. If your client does poorly, it is a malingering test.

Q: Doctor, which does the test publisher call this test?

Q: Doctor, show me the test administration and interpretation manual so I can see how this test is described.

3. Using Wrong Tests

Lately, I have heard many neuropsychologists testify that certain malingering scales reflect a lack of motivation. Be careful. Often, these tests, in fact, reveal concentration problems. The reverse is also true. Some doctors may call a malingering test a memory test when the patient passes, but conclude malingering if she fails. Recently, I had a doctor testify that he administered a test that was sensitive to right hemispheric brain damage. My client was severely injured when the left side of his head impacted the safety glass of his window. The doctor concluded no brain damage because he tested for functions affiliated with right-sided brain activity knowing full well that it was the left side of my client’s brain that was damaged. This was certainly no accident.

4. Claims Plaintiff Flunked When Scoring Manual Says She Passed

What if the test administered really was created to determine whether your client is malingering? How do you know your client flunked? Always ask for the score that the manual says represents flunking, and ask the doctor if the patient actually flunked, pursuant to the manual’s scoring method. Ask the doctor to show you where in the manual it states that he is permitted to reach that conclusion. If he cannot back it up with science, then it’s pure speculation and should be excluded. Doctors may claim certain scores are “elevated” when the test manuals say the score is passing, or visa versa. I can’t tell you how often a doctor has claimed the patient flunked, and then, when presented with the manual, admitted the patient passed and could not cite the science behind his own creative scoring. For example, a doctor took the stand in a recent trial and testified my client flunked the Rey’s l5-item test. She scored a l2, clearly a passing score according to standard treatises. The doctor, however, chose to conclude she flunked. Another example — same situation, different doctor: At trial, the doctor testified that my client flunked a certain malingering test. I asked the score. The score, at least according to the manual, was a passing score. When I pointed this out to the doctor, he began to babble about a “study” which “permitted” one to conclude malingering with a lower score.

5. Selectively Reports Test Results

Defense doctors often pick and choose which test results to include in their reports, slanting the report in favor of the defense. They “forget” to report malingering scales when your client passed, or they report only the subscales that conclude malingering, not those your client passed.

As an example: The California Verbal Learning Test is frequently given in a neuropsychological environment. This test is used to assess verbal learning and memory (8). One portion of this test is called the “Forced Choice Component.” In this portion of the test, the plaintiff is given a choice of answers, rather than generating them independently on his own. Some DMEs use this portion of the test as a malingering scale, and will report that poor scores are indicative of malingering. If, however, your client passes this portion of the test, that fact will be left out of the report. Translation: I’m only going to report evidence that supports the defense — the side that is paying me. Press the doctor on this point. If the DME’s report does not mention the forced choice component, ask the doctor if, in the past, he has claimed the missing items in this portion of the CVLT are evidence of malingering. He probably will have to admit he has. Then, point out that your client did well in this section, but his report says nothing about this section being evidence of no malingering. In one case, I got the DME to admit he did not report when patients passed malingering tests, only when they flunked. He admitted he had never, in over 20 years, ever testified a plaintiff was telling the truth, and frequently found they were malingering.

This is one of the most common problems I encounter with DMEs. Unless you know the doctor’s pattern, he won’t get caught when he plays this game. Ask the doctor the following:

Q: Doctor, have you identified every single scale that you have claimed in any other case was an indication of malingering?

Q: Have you reported all those scores on those tests in my client’s case?

Q: Doctor, please identify each test in this battery which you have ever concluded is evidence of malingering?

Q: Doctor, please identify all scales which you have ever concluded were evidence of malingering. In other words, please identify those scales or subscales which you believe have a component of effort or the ability to determine exaggeration. Let’s go through each one, and please identify on all of those scales whether or not my client passed.

6. Concludes Malingering Even When Plaintiff Passed Most (or Even All) Malingering Tests

What if your client was administered several trials of a test and passed most, but not all of them? The defense-oriented doctor will be quick to conclude overall malingering. Likewise, if your client was administered 25 malingering tests and passed 24, the defense-oriented doctor will ignore the majority and conclude malingering. I have had cases in which the plaintiff passed 90% of the malingering tests, and the DME concluded the plaintiff was 100% malingering; in other cases, the plaintiff passed all the tests, yet the doctor still concluded the plaintiff was malingering. Demand that the DME show you where in the manual such a conclusion is permitted.

7. Fails to Provide Actual Percentages, but Refers to “Z” Scores or “T” Scores

Psychological testing can be broken down into percentages. For example, your client may fall within the bottom first percentile on a particular test, indicating clear impairment. However, the defense doctor may only report the scores, for example as a “Z” score. A “Z” score is a “[s]tatistical measure that quantifies the distance (measured in standard deviations) a data point is from the mean of a data set” (9) That doesn’t mean much to most lawyers, but finding out that your client was so impaired he fell within the bottom first percentile most definitely does.

Assume the doctor gives your client the Controlled Oral Word Association Test (“COWAT”). The COWAT is usually administered when brain damage or concentration problems are suspected. It is not a malingering test, but the doctor claims your client has a normal COWAT “Z” score of -2.70 and is, therefore, malingering the symptoms. Let’s break this down to everyday speak. A “Z” score of -2.70 means that 99.6 percent of the population did better than your client! That is not a normal score; it is an impaired score. However, unless you know how to convert the scores, this is what the deposition will look like:

Q: Doctor, what does that mean in terms of what percentage of the population did better on that test than my client? In other words, what is my client’s percentile ranking?

A: I don’t know, counselor. As a professional, I do not need to convert it to a percentile score to know it is not impaired.

There you are — a handful of air. This testimony is useless to you. Try this instead:

Q: Doctor, I have a conversion table for derived scores from Test Scores and What They Mean, published by Prentice-Hall (10). According to this table, my client scored lower than the bottom l% of the percentile rank. Do you deny this?

A: I did not convert the score, counselor.

Q: Doctor, isn’t it true that the reason you did not convert the score to a percentile rank was because it very well indeed would show my client is in the bottom one-percent?

A: No.

Q: Doctor, you converted the other scores in which my client was not impaired to percentile rank. Why the difference?

A: Uh, I don’t recall.

Q: Doctor, do you deny, as we sit here today, that this “Z” score converts to a percentile rank putting my client in the bottom 1% of the population to whom he is compared?

Q: In other words, if you put 100 people in a room and gave them a COWAT, nobody in the room would perform more poorly than my client?

The doctor cannot deny this, so it will be obvious to the jury, even if they don’t know why, that the doctor is playing games here.

8. Claims Pain Scales Are Actually Malingering Scales

If the patient endorses too many pain symptoms, he’s malingering. If he endorses too few, then there is nothing wrong with him.

9. Claims “Borderline Flunking” or “Borderline Passing”

There is no such thing as “borderline flunking.” Your client passed or did not pass, and there is nothing in the test booklet that permits the doctor to conclude otherwise.

Also watch out for the doctor who graciously admits your client is not malingering, and then gratuitously mentions a malingering scale or throws in a statement about your client “borderline passing,” or says something like, “I don’t think your client is exaggerating. Of course, one can never rule it out.” I’d long feared that doctors did this in an attempt to put the word “malingering” or “exaggeration” in front of the jury and get them chewing on something they might never have considered. I asked jury consultant David Ball about this. He confirmed my suspicions:

There are two kinds of problem doctors. One kind uses junk science and bogus methods. The other just drops unfounded assumptions — such as, “He was borderline on the malingering scale,” or “This could be exaggeration of symptoms.” There is rarely a basis for such a statement. The doctor might even say, “I’m not saying he is malingering,” but he has brought up the topic, aroused suspicion about it, and never says, “The patient is not malingering.” We have seen in trial after trial that this deceptive implication drives verdicts lower and generally undermines jurors’ confidence, even in the plaintiff’s liability case. It is dirty pool; the doctor knows it is dirty pool; and the doctor makes a great living doing it. This level of dishonesty stems from both the drive to make a bunch of money and from the fact that many such doctors hate lawsuits that help plaintiffs. (11)

10. Ignores the “Retest” Effect

The doctor claims your client is not brain injured because he administered a test previously administered by your doctor and your client tested out much better. Therefore, defense doctor concludes your client either is malingering or is cured. Wrong on both counts. Ask the doctor about the retest effect. Many tests, when administered twice, actually result in the patient getting a higher score the second time because he remembers stories read to him the first time the test was administered and not because he is actually improving. This does not mean the patient is better. It is simply a factor of the retest effect, and many studies exist to determine the exact increase in scores that might be expected based upon these phenomena. Studies show, for example, a potential problem when dealing with IQ tests (12). How do you know if the test has a “retest” effect? Do you have to hire a psychologist? No. Google the name of the test along with the word “retest” or “practice effect,” and you can pull up articles instantaneously. Therefore, if the DME gives your client the same test your expert just gave a few months earlier, ask about the retest effect:

Q: Doctor, please describe the “retest” or “practice” effect.

Q: Doctor, isn’t it true that if you give the IQ test a second time within a few months of the first administration of the test, the individual’s IQ score can increase, but that increase reflects nothing more than the practice effect?

Q: There were many other tests of a similar nature you could have administered, but you chose not to, correct?

Q: Isn’t it true that you gave the very same test that was administered by my client’s treating psychologist so you could try to argue that my client had gotten better and was less impaired?

Q: Show me where you have conducted research on the retest effect with regard to this particular test.

11. Ignores Treating Physician’s Diagnosis, Record of Treatment – Confirmatory Bias

Often the defense doctor will claim the plaintiff’s condition exceeds what one would expect from the physical findings. In most cases, however, this requires the defense doctor to completely ignore the majority of the evidence, starting with the treating physician. The defense witness will rely only on other defense experts to claim that the plaintiff does not have a real physical condition. This practice is called “confirmatory bias,” which exists when an individual ignores all data and information that is contrary to the conclusion he wishes to reach.

Q: Do you actually know the differences between the qualifications of the plaintiffs treating doctors and the defense expert witnesses?

Q: It would be inappropriate then for you to determine one expert is a better doctor, more intelligent, and more reliable than another doctor, correct?

Q: So, if we rely upon the testimony and findings of the treating doctors — the doctors who have spent the most time with the plaintiff, who have not been hired as part of a lawsuit, but were retained solely to try to help this man get better — if we rely on those doctors and their findings, then isn’t it true that you must conclude my client is suffering from ____.

12. Claims Normal IQ Means No Brain Damage or Psychiatric Diagnosis

This is a “myth” of head injury recovery (13). In fact, patients who are tested 1-2 years after an injury may show little change from their pre-injury I.Q (14).

13. Claims Normal Scales on Memory Tests Mean No Brain Injury or Psychiatric Problems

Get the doctor to admit that many types of brain damage may not affect the memory. For example, cerebral palsy and locked-in syndrome (secondary to a stroke) do not affect a patient’s memory.

1. J.R Flynn, The mean IQ of Americans: Massive gains 1932 to 1978, Psychological Bulletin 95, 29-51 (1984).

2. R.M.Reitan & D. Wolfson. The Halstead-Reitan Neuropsychological Battery, Theory and Clinical Interpretation, (Tuscon, AZ Neuropsychology Press 2d ed.) at 121 (l993).

3. Coalition of Clinical Practitioners in Neuropsychology, Code of Ethics for Coalition of Clinical Practitioners in Neuropsychology, at at

4. Coalition of Clinical Practitioners in Neuropsychology, Code of Ethics for Coalition of Clinical Practitioners in Neuropsychology at


5. American Psychological Association, Ethical Principles of Psychologists and Code of Ethics- Release of Raw Data 9.04, (2002), at

6. Id.

7. See the American Psychological Association’s Code of Ethics on this topic (

9.09 Test Scoring and Interpretation Services:

(a) Psychologists who offer assessment or scoring services to other professionals accurately describe the purpose, norms, validity, reliability, and applications of the procedures and any special qualifications applicable to their use.

(b) Psychologists select scoring and interpretation services (including automated services) on the basis of evidence of the validity of the program and procedures as well as on other appropriate considerations. (See also Standard 2.01b and c, Boundaries of Competence.)


(c) Psychologists retain responsibility for the appropriate application, interpretation, and use of assessment instruments whether they score and interpret such tests themselves or use automated or other services.

8. 1/3/07

9. 8/l4/08

10. You can get the conversion chart online at

11. Text of e-mail to author from David Ball, sent Wednesday, October 31, 2007 12:37 PM. Reprinted with permission of David Ball.

12. 8/l4/08

13. Thomas Kay & Muriel Lezak, Traumatic Brain Injury and Vocational Rehabilitation at

14. Robert J. Sbordone, & Ronald E. Saul, Neuropsychology for Health Care Professionals and Attorneys, Second Edition 180 (2002).

Dorothy Clay Sims has perhaps the most unusual legal practice in the nation. She helps lawyers cross-examine doctors in cases involving personal injury, long-term disability, medical malpractice, criminal law, family law, and workers’ compensation. In her 25 years as a lawyer, Ms. Sims has cross-examined thousands of doctors throughout the U.S. In addition to cross-examining doctors herself, Ms. Sims provides notebooks for lawyers to use in examining doctors which include background material on the expert as well as questions to use in deposition and trial. Ms. Sims is senior partner in Sims & Stakenbourg in Gainesvilleand Ocala, Florida, where her firm practices social security disability law and assists lawyers in understanding medical issues. Ms. Sims is the author of Exposing Deceptive Defense Doctors, from which this article is excerpted.