I have always called it the Defense of Misdirection. This year, is an election year, and I have an easier term for people to understand: SPIN. Spin is what defense attorney’s do. They spin everything, ignoring the obvious and coming up with some type of misdirection to disregard the diagnosis of treating doctors. The goal is to shift blame from everyone but the defendant who actually caused the injury by his/her/its wrongful conduct.
The favorite spin of defense attorneys is to blame it on pre-injury (pre-morbid is the medical term, meaning previously to the injury “mordibity”) psychological problems. The Army now is using similar tactics. With insurance companies the motive is to build up the skepticism of the jury, to reduce the amount its insured is required to pay. With the Military, the motive is to find as many warm bodies as possible to send back into a combat zone, to keep the numbers up for the surge in Iraq. There might also be the motive to save billions in VA benefits, too.
An April 23, 2007 story in the Army Times details the way in which the Army is using so-called “personality disorders” and tactics typical of Defense lawyers to force soldiers to go back into combat, or deny them proper veterans medical and disability benefits. For the full story, click here: http://www.armytimes.com/news/2007/04/military_braininjury_thurman_070420w/
The insurance industry propaganda machine is always trying to stir up sentiment about frivolous lawsuits. What actually happens in the Courtroom is dramatically different.
Defense attorneys learn how to spin any disability into something where they can raise jurors skepticism. Defense attorneys hire doctors who know what is expected of them. Ridiculous, psychosomatic diagnosis not found in the real medical world since Freud, are reinvented.
(The actual condition of Conversion disorder is so rare, that only left-over Freudian influence in the psychiatric profession, keeps it in the DSM-IV.) Pre-morbid personality disorders are found even though the person was considered well adjusted and productive before they got hurt. Any emotional counseling around life’s normal challenges such as divorce or marital difficulties is turned into evidence of deep seeded psychosis.
Jurors often see the Defense doctors as equally credible to the plaintiffs treating doctors, for reasons that are hard to fathom. As the plaintiff has the “burden of proof”, any doubts are resolved in favor of the Spin Doctors. Often the most credible evidence is that of friends and co-workers, who tell of how normal and productive the plaintiff was before. Defense lawyers try to spin this, and apparently, so does the military. The Army Times story linked above, tells of a soldier who was claimed to have a personality disorder, even though it didn’t show itself until he returned from Iraq.
Edward Kaspar said he served as Town’s lieutenant and was a witness to the incident in which a rocket exploded above Town’s head in Iraq, causing his brain injury.
“I was pretty shocked to hear about his problems now,” Kaspar said by e-mail. “This personality disorder thing just doesn’t make sense. I’m not a trained medical professional, but I can say that in the years he served as one of my soldiers, he definitely had it together. _ I relied on him to get the job done and he never failed me, both in peacetime and in war.”
Senators and Congressmen are calling for our wounded soldiers to get better treatment than this. While Bush and McCain are still fighting giving maximum benefits to Iraq Veterans, the political tide looks like by early next year, the laws will be improve. But changing the written rules won’t be enough. The culture of denial must be changed. Doctors, both civilian and military must start to believe that good, hard working people, are not malingers, just waiting for a chance for a free ride. People don’t choose the life of the disabled. They are disabled because their minds have been fundamentally changed by either trauma or extraordinary stress in a way, that has left them only a shadow of who they were. This is not a life of luxury, but a tragedy that deserves all of the assistance either our court system in the case of civilian injuries, or the VA system, in case of military injuries, can provide.
There can be no disagreement on this: forcing a soldier with a brain injury or PTSD to return to combat is unconscionable, not just because it is exposes that soldier to death and more disability, but because it exposes other soldiers to the same, because they will not be able to rely on that soldier.
Brain Damage Not Malingering
Yesterday’s blog about my frustrations with the refusal of the Wikipedia editor to add my two cents on the interaction between organic injury and emotional problems is symptomatic of a problem that is persuasive throughout neuropsychology: the insurance companies and their alter ego, the defense bar, are polluting the science of brain injury. The toxic words in this equation are malingering, conversion disorder and somatoform disorder. Huge sums of money are being funneled into what is being passed off as neuropsychological research from the insurance industry. The goal: to create peer reviewed literature that says that those with mild brain injury symptomotology are either faking their symptoms or are having an emotional reaction to what they experienced.
This topic is one worthy of several blogs. But essentially, more effort is being put into effort testing research, than almost all of the research that is going into the rest of the field brain injury. And the insurance industry has made it so profitable for neuropsychologists to work on the defense side of forensic cases, that neuropsychologists who went into the field with some sense of a calling, have convinced themselves that the doctrines of malingering, conversion disorder and malingering are real.
What does that have to do with a PTSD issue discussed in Wikipedia? It is a mild version of the same equation. The defense bar has what is correctly identified as a dog bite defense to brain injury cases. A dog bite defense is a multi-layered basis of denial, that each time something is proven, then retreat to the next defense.
You weren’t bitten by a dog; if you were, it wasn’t my dog; it you were bitten by my dog, it was your fault the dog bit you; if it was my dog’s fault you weren’t hurt.
Well in brain injury cases the dog bite defense is this:
There are no deficits, the plaintiff is normal; if there are deficits, then the plaintiff is malingering those deficits; if the plaintiff isn’t malingering, then the deficits are being caused by emotional problems, that the plaintiff had before the injury; if the plaintiff’s deficits didn’t exist before the injury, they are still just an exaggerated case of a somatoform or conversion disorder that a normal person wouldn’t have. If none of those other things don’t work, then call it PTSD (post traumatic stress disorder.)
If you work for the defense, NEVER, NEVER, NEVER, admit that the plaintiff had any permanent organic (meaning actual physical) damage or injury to the brain.
The ways in which these “research” studies are structured, they evaluate the plaintiff’s effort. They claim that their research validates that they can tell whether someone is malingering. That is just so much lying with statistics. No study can possibly tell that. It is impossible to tell what is in the mind of an individual. Neuropsychologists are not mind readers. In a court of law, they are most often not even allowed to comment on the credibility of a plaintiff. When you strip the cover off this claim, what they are really saying is that their super secret methodology (that no plaintiff could ever guess at) is telling them that a plaintiff didn’t give consistent “best effort” throughout the test.
I will blog on this particular topic more in the coming days, but such logic is incredibly flawed for a myriad of reasons. But one simple issue invalidates all effort testing claims: no person with brain damage could be expected to give consistent “best effort” over any battery of tests that last for hours and hours. Every single symptom of brain injury, makes it virtually impossible to maintain consistent effort for hours upon hours. I will later itemize how many of those symptoms effect consistent effort, but one common denominator has such a profound impact on effort that it alone makes effort testing a fraud: FATIGUE. Virtually everyone with brain damage, has fatigue. Fatigue makes you work slower, and progressively slower, the longer you are tested. Fatigue makes you make more mistakes. If you are working progressively slower and with progressively more mistakes, you will not be able to give consistent “best effort.”
Our next blog will examine these effort testing issues in more depth.
This topic is one worthy of several blogs. But essentially, more effort is being put into effort testing research, than almost all of the research that is going into the rest of the field brain injury. And the insurance industry has made it so profitable for neuropsychologists to work on the defense side of forensic cases, that neuropsychologists who went into the field with some sense of a calling, have convinced themselves that the doctrines of malingering, conversion disorder and malingering are real.
What does that have to do with a PTSD issue discussed in Wikipedia? It is a mild version of the same equation. The defense bar has what is correctly identified as a dog bite defense to brain injury cases. A dog bite defense is a multi-layered basis of denial, that each time something is proven, then retreat to the next defense.
You weren’t bitten by a dog; if you were, it wasn’t my dog; it you were bitten by my dog, it was your fault the dog bit you; if it was my dog’s fault you weren’t hurt.
Well in brain injury cases the dog bite defense is this:
There are no deficits, the plaintiff is normal; if there are deficits, then the plaintiff is malingering those deficits; if the plaintiff isn’t malingering, then the deficits are being caused by emotional problems, that the plaintiff had before the injury; if the plaintiff’s deficits didn’t exist before the injury, they are still just an exaggerated case of a somatoform or conversion disorder that a normal person wouldn’t have. If none of those other things don’t work, then call it PTSD (post traumatic stress disorder.)
If you work for the defense, NEVER, NEVER, NEVER, admit that the plaintiff had any permanent organic (meaning actual physical) damage or injury to the brain.
The ways in which these “research” studies are structured, they evaluate the plaintiff’s effort. They claim that their research validates that they can tell whether someone is malingering. That is just so much lying with statistics. No study can possibly tell that. It is impossible to tell what is in the mind of an individual. Neuropsychologists are not mind readers. In a court of law, they are most often not even allowed to comment on the credibility of a plaintiff. When you strip the cover off this claim, what they are really saying is that their super secret methodology (that no plaintiff could ever guess at) is telling them that a plaintiff didn’t give consistent “best effort” throughout the test.
I will blog on this particular topic more in the coming days, but such logic is incredibly flawed for a myriad of reasons. But one simple issue invalidates all effort testing claims: no person with brain damage could be expected to give consistent “best effort” over any battery of tests that last for hours and hours. Every single symptom of brain injury, makes it virtually impossible to maintain consistent effort for hours upon hours. I will later itemize how many of those symptoms effect consistent effort, but one common denominator has such a profound impact on effort that it alone makes effort testing a fraud: FATIGUE. Virtually everyone with brain damage, has fatigue. Fatigue makes you work slower, and progressively slower, the longer you are tested. Fatigue makes you make more mistakes. If you are working progressively slower and with progressively more mistakes, you will not be able to give consistent “best effort.”
Our next blog will examine these effort testing issues in more depth.
