May 22, 2008

Major ruling on forensic neuropsychology

Flexible wins epic
Battle of the Batteries

The Democrats have Obama versus Clinton. American Idol has the battle of the two Davids. But whoever heard of the battle between the fixed and the flexible batteries?

The New Hampshire Supreme Court, for one. And in that more obscure battle in the field of neuropsychology, the court this week handed a resounding victory to the flexible battery. Although I haven't seen anyone dancing in the streets, it's a victory that forensic psychologists and neuropsychologists should be celebrating.

A bit of background: The "fixed" battery approach involves rigid administration of a fixed set of tests. The most popular such batteries are the Halstead-Reitan and the Luria. The flexible or "Boston Process" approach, in contrast, involves administering a core set of tests, supplemented by extra tests chosen on the basis of specific case factors and hypotheses.

When I was a neuropsychology intern, I was trained in the Boston Process Approach. As it turns out, the overwhelming majority of neuropsychologists in a recent survey - 94% - said they use some type of flexible battery approach. As the New Hampshire Supreme Court pointed out, that makes it the standard of practice in the field.

The case involves the alleged lead poisoning of Shelby Baxter, now 13, when she was a toddler. The civil case against Ms. Baxter's landlord, whom the Baxters claim knew the apartment was contaminated, was dismissed after the trial judge excluded neuropsychological evidence using the Boston Process approach as not scientific. The case will now go forward.

The plaintiffs' neuropsychologist, Barbara Bruno-Golden, Ed.D, had substantial experience with lead-exposed children, and each individual test in her battery was published, tested, and peer reviewed, as befitting reliable science under the legal standard of Daubert and New Hampshire statutory law.

At a 6-day Daubert evidentiary hearing, the defense called controversial neuropsychologist David Faust, Ph.D., who testified that although Dr. Bruno-Golden's approach was generally accepted in clinical practice, it was not so in a forensic setting. The plaintiff's experts, as well as the American Academy of Clinical Neuropsychology in an amicus brief, correctly countered that there is no separate standard for forensic practice.

In its exhaustive and thoroughly reasoned opinion, the Supreme Court soundly rejected Faust's reasoning, issuing a monumental blow to the minority of forensic neuropsychologists who staunchly cling to the fixed battery approach.

"Under the defendants' position, no psychologist who uses a flexible battery would qualify as an expert, even though the flexible battery approach is the prevalent and well-accepted methodology for neuropsychology," the court pointed out. "Therefore, the implication … is that no neuropsychologist, or even psychiatrist or psychologist since, in their view, all combinations of tests need to be validated and reliable, could ever assist a trier of fact in a legal case."

The court held that any weaknesses in Bruno-Golden’s methodology - if indeed such existed - were properly handled through cross-examination and counterbalancing evidence in the adversarial trial process.

The case, Baxter v. Temple, is online here. A news article is here. A blog commentary at Traumatic Brain Injury is here.

Photo credit: 02ma (Creative Commons license)

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