Legal Update #23 The Effect of Litigation on Emotional, Cognitive and Behavioral Outcome Following Severe Traumatic Brain Injury
NLBC LEGAL UPDATE: June, 2006 - Issue #23
Sam Goldstein, Ph.D., Editor
Complimentary Service of the Neurology, Learning and Behavior Center
The Effect of Litigation on Emotional, Cognitive and Behavioral Outcome Following Severe Traumatic Brain Injury
In 1961, British neurologist Herbert Miller argued that compensation seeking contributed to the expression of disability in one out of four to one out of three head trauma cases in which financial compensation was a possibility. The majority of recent research on the impact of litigation on daily functioning has almost entirely focused on minor head injury. In this group only a minority of studies have failed to conclude that financial gain had little effect on symptom patterns and recovery rates. Most of these studies concluded that:
- More symptoms of concussion were reported by litigants than non-litigants.
- These symptoms lasted longer.
- They were reported to be more debilitating.
- They were reported to generate higher levels of psychological distress.
In 1996 Binder and Rohling, based upon eighteen study groups and over 2,000 cases found a moderate overall effect size pointing to greater abnormality and disability in less severely injured patients when financial incentives were involved. These authors suggested that when financial compensation was removed, symptoms attributed to head injury were reduced by 23%. Some researchers and writers have also assumed that once litigation is concluded, symptoms of minor traumatic brain injury resolve. However, this has not been universally supported by the existing research literature.
Research comparing litigant and non-litigant groups has primarily focused on symptom expression based upon patient report. Significant questions have been raised as to the validity and reliability of this method, including the fact that many non-brain injured individuals complain of post-concussional symptoms. When detailed neuropsychological evaluations are used as a basis for comparison, few if any differences are found between individuals with and without active litigation in cases of severe traumatic brain injury.
A recent study in the United Kingdom by Rodger Wood and Neil Rutterford examined two severely brain injured groups of individuals, one group involved in litigation, the other not, at four months and ten years post-injury. No differences were identified between the groups on measures of cognitive ability to suggest underachievement at an early stage of recovery when the litigant group was assessed medico-legally or after an interval of ten years post injury. Measures of psychosocial outcome and psychological morbidity at ten years post injury failed to demonstrate any significant differences between the groups. The authors concluded that the process of litigation did not have any long term effect in respect to symptom outcome and reports of impairment. This study is consistent with others that have assessed litigants and non-litigants following severe brain injury but differs from some published research focusing on minor brain injury patients.
Differences in symptom complaints may also be a function of differences in expectations, demands and the time between an accident and return to every day activities. Patients with severe traumatic brain injuries rarely return to normal daily activities for an extended period of time post-accident. The expectations placed upon them by family, friends, employers, etc., tend to be reduced based upon the acknowledgment that a severe brain injury has occurred. In contrast, individuals with minor traumatic brain injury often very quickly, sometimes within a few days, return to work, family activities and the demands of every day living. It may well be that the minor symptomatic problems experienced by patients with mild traumatic brain injury initially quickly escalate in the face of the stress incurred by efforts to return to normal daily activities prematurely.
It has also been suggested by some researchers that organic symptoms produced by traumatic brain injury may be prolonged by the individual's response to their symptoms. This may be more likely to occur in a group of litigants, many of whom feel the need to justify symptoms that are repeatedly questioned by clinical practitioners and expert witnesses. It is quite likely that repeated questioning by both the medical and legal community focuses an individual's attention on symptoms that might otherwise be dismissed or spontaneously resolve.
The presence or absence of significant differences between litigant and non-litigant groups, however, does not eliminate the need to assess effort (trying your best), dissimulation (making more of a problem than it really is) or outright malingering (lying) in the medical-legal arena. These research data, however, allow neuropsychologists to consider a balanced perspective that most individuals involved in litigation, at least after severe head injury, are not exaggerating their cognitive deficits.
References
Binder, L., & Rohling, M.L. (1996). Money matters: A meta-analytic review of the effects of financial incentives on recovery after closed head injury. American Journal of Psychiatry, 153, 7-10.
Blanchard, E.B., Hickling, E.J., Taylor, A.E., Buckley, T.C., Loos, W.R., & Walsh, J. (1998). Effects of litigation settlements on post-traumatic stress symptoms in motor vehicle accident victims. Journal of Traumatic Stress, 11, 337-354.
Fernstein, A., Ouchterlony, D., Somerville, J., & Jardine, A. (2001). The effects of litigation on symptom expression: A prospective study following mild traumatic brain injury. Medicine, Science and Law, 41, 116-121.
Gouvier, W.D., Cubic, B., Jones, G., Brantley, P., & Cutlip, Q. (1992). Post-concussion symptoms in daily stress in normal and head injured college populations. Archives of Clinical Neuropsychology, 7, 193-211.
Kelly, R. (1975). The post-traumatic syndrome: An iatrogenic disease. Forensic Science, 6, 17-24.
Lees-Haley, P.R., & Brown, R.S. (1993). Neuropsychological complaint base rates of 170 personal injury claimants. Archives of Clinical Neuropsychology, 8, 203-209.
McKinley, W.W., & Brooks, D.N. (1994). Methodological problems in assessing psychosocial recovery following severe head injury. Journal of Clinical Neuropsychology, 6, 87-99.
Miller, H. (1961). Accident neurosis. British Medical Journal, 1, 919-926.
Wood, R.L., & Rutterford, N.A. (2006). The effect of litigation on long-term cognitive and psychosocial outcome after severe brain injury. Archives of Clinical Neuropsychology, 21, 239-246.
The Neurology, Learning and Behavior Center provides clinical and forensic assessment, case management, trial consultation and treatment services for children and adults with brain injury and dysfunction, Attention-Deficit Hyperactivity Disorder, language disorders, learning disability, developmental delay, emotional disorders, Autism and adjustment problems. The Center is dedicated to the provision of treatment services.
