Protecting your rights regarding psychological testing in a personal injury lawsuit
Depending on the facts of your case, the defense (i.e., the party you have sued) may request that you submit to testing by a psychologist, neuropsychologist or psychiatrist. There are many variations of psychological and neuropsychological tests and many ways to administer and score those tests. In fact, many personal injury lawyers are overwhelmed by the number and scope of available tests. Some defense medical doctors will try to take advantage of this potential for confusion by, for example, refusing to let your injury attorney see the actual test questions, or your actual answers, or the test administration manual; instead, they will provide only a summary report of the test results and, essentially, ask that your attorney trust the report is accurate.
There are several ways a smart personal injury lawyer can help level the playing field and protect your rights with regard to psychological, neuropsychological and psychiatric testing:
1. Learn about the tests.
In order to understand your test results and critically evaluate the defense doctors’ reports, your personal injury attorney must have at least a rudimentary understanding of the most commonly administered tests. Your personal injury attorney should research the test protocol, so that he or she can determine if the defense doctor followed the testing protocol exactly and, significantly, if the test that was administered is a proper screening device for your condition.
2. Learn about mental health diagnoses and conditions.
Many personal injury attorneys own a copy of the American Psychiatric Association’s Diagnostic and Statistical Manual (the “DSM-IV”). This book is the most commonly used treatise in psychology and psychiatry. It is a sure bet that the defense medical doctor will have a copy and will rely on it as authoritative.
3. Obtain the raw data.
A good personal injury attorney will not rely solely on the defense expert’s report, but will, instead, use the authority of the court to obtain the raw testing data: the actual test you took; your handwritten responses; the test results; and the computer printouts, which may have very good language about you that was not included in the defense expert’s report. Your personal injury attorney also should obtain the test administration and scoring manual.
4. Get a second opinion
Your personal injury attorney may retain an expert to hand-score or re-score the test and determine how those scores compare with the defense medical expert’s report. Your expert also can review the defense expert’s report in detail. What is in the report? Perhaps more importantly, what is not in the report?