68 The Alabama Lawyer 216 (2007). Obtaining Neuropsychological Test Data: Why Is This So Hard.

AuthorBY MARK PROHASKA AND DAVID P. MARTIN

The Alabama Lawyer

2007.

68 The Alabama Lawyer 216 (2007).

Obtaining Neuropsychological Test Data: Why Is This So Hard

Obtaining Neuropsychological Test Data: Why Is This So Hard?BY MARK PROHASKA AND DAVID P. MARTIN Alex, a 45-year-old operations manager for his company, severely injured his head and back in an automobile accident. He is now on daily pain medication. Since this accident, Alex has been very forgetful and has had a hard time with numbers. His daily medications also make him drowsy. He can't do his job with these limitations.

Alex filed claims for long-term disability benefits with his company, but both claims have been denied. He also tried to settle his accident claim, but was not successful. A major obstacle has been substantiating Alex's claim of cognitive loss related to his head injury. Alex was seen by a neuropsychologist who performed an extensive evaluation of his cognitive abilities, and concluded that Alex was indeed experiencing problems in attention, concentration, learning and memory, all of which are consistent with the injury he suffered in the accident.

When his claims were filed, each insurance company or claims administrator wanted to view the neuropsychological test data, commonly called raw test data. Even though Alex gave his consent for the release of his test data, his neuropsychologist refused to surrender it, expressing concern over potential misuse if turned over blindly to unqualified persons.

Alex subsequently hired counsel to appeal the denial of his benefit claims. His attorney found that the denial of the benefit claims was based on the failure of the neuropsychologist to send the raw data to the claims administrators' staff physician. There had to be a way to solve this problem. It was unfair for Alex to be caught in the middle.

Alex also hired counsel to file suit on the accident claim. Discovery was served in the accident case seeking the raw data and a subpoena was served on Alex's treating neuropsychologist. Again he refused to release the raw data to Alex's attorney, citing the same concerns. Additionally, the defendant desired to conduct a neuropsychological exam of Alex. This, of course, meant that Alex's attorney would want the raw test data from that examination to likewise cross-examine the opposing neuropsychologist opinion. The stage is now set for a hearing on these issues.

Battles like these are waged in all sorts of claims, civil or criminal, by parties on both sides. For example, see McWilliams v. State, 640 So.2d 982 (Ala. Crim. App. 1991) and Neumann v. Prudential Ins. Co. of America, 367 F.Supp.2d 969 (E.D. Va., 2005) an E.R.I.S.A. benefits case, and CSX Transportation, Inc. v. Ryan, No. 2005-SC-0275-MR (Ky. 5/18/2006) a F.E.L.A. claim. But why is the raw data so important and why is it so hard to get? Understanding this requires understanding what a neuropsychologist is and what he or she does. It is also important to understand the ramifications of surrendering the raw test data.

What is a Neuropsychologist?

A neuropsychologist is a clinical psychologist with specialty training in the study of brain-behavior relationships. Although neuropsychology is a subspecialty of clinical psychology, it is actually more closely aligned with neurology and the science of medicine than with the study and treatment of mental health that is typically associated with the field of psychology. Every neuropsychologist is trained as a clinical psychologist and licensed through the state board of examiners in psychology; however, the training of a neuropsychologist goes well beyond that required to obtain a Ph.D. in clinical psychology. The National Academy of Neuropsychology recognizes the following as the minimal training criteria for a neuropsychologist:

1. A doctoral degree in psychology from an accredited university training program; 2. An internship, or its equivalent, in a clinically relevant area of professional psychology; 3. 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 that include supervision by a clinical neuropsychologist; and 4. 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.

At present, board certification is not required for practice in clinical neuropsychology. Board certification, though optional, is available through the American Board of Clinical Neuropsychology, which does provide evidence of the above advanced training, supervision and applied fund of knowledge in clinical neuropsychology. (See, NAN, Definition of a Clinical Neuropsychologist, Official Position Statement May 5, 2001; Definition of a Clinical Neuropsychologist, The Clinical Neuropsychologist 1989, vol. 3, no. 1, p. 22).

A neuropsychologist typically provides...

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