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 s e cond e di t ion

The
Forensic
evaluation of
Tr aum atic
Br ain Injury
A H A NDBOOK for
C linici a ns a nd At tor neys

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9075.indb 2 10/3/07 1:31:05 PM
 s e cond e di t ion

The
Forensic
evaluation of
Tr aum atic
Br ain Injury
A H A NDBOOK for
C linici a ns a nd At tor neys

Edited by
Gregory J. Murrey
Donald Starzinski

Boca Raton London New York

CRC Press is an imprint of the

Taylor & Francis Group, an informa business

9075.indb 3 10/3/07 1:31:05 PM

 CRC Press
Taylor & Francis Group
6000 Broken Sound Parkway NW, Suite 300
Boca Raton, FL 33487‑2742
© 2008 by Taylor & Francis Group, LLC
CRC Press is an imprint of Taylor & Francis Group, an Informa business

No claim to original U.S. Government works

Printed in the United States of America on acid‑free paper
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International Standard Book Number‑13: 978‑0‑8493‑9075‑3 (Hardcover)

This book contains information obtained from authentic and highly regarded sources. Reprinted
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Library of Congress Cataloging‑in‑Publication Data

The forensic evaluation of traumatic brain injury : a handbook for clinicians and
attorneys / Gregory J. Murrey and Donald Starzinski, editors. ‑‑ 2nd ed.
p. ; cm.
“A CRC title.”
Includes bibliographical references and index.
ISBN 978‑0‑8493‑9075‑3 (hardcover : alk. paper)
1. Brain damage‑‑Diagnosis. 2. Forensic neuropsychology. 3. Forensic
psychology. 4. Neurologic examination. 5. Mental status examination. I. Murrey,
Gregory J. (Gregory Jay), 1960‑ II. Starzinski, Donald.
[DNLM: 1. Brain Injuries‑‑diagnosis‑‑Handbooks. 2. Expert
Testimony‑‑Handbooks. 3. Forensic Medicine‑‑methods‑‑Handbooks. 4.
Neuropsychological Tests‑‑Handbooks. WL 39 F711 2008]

RC387.5.F66 2008
614’.1‑‑dc22 2007024064

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T&F_LOC_A_Master.indd
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10/3/07 3:24:06 PM
 Contents
List of Tables and Figures..........................................................................................ix
Preface.......................................................................................................................xi
Acknowledgments................................................................................................... xiii
About the Editors...................................................................................................... xv
Contributors............................................................................................................xvii

Chapter 1 Overview of Traumatic Brain Injury: Issues in the Forensic

Assessment..........................................................................................1
Gregory J. Murrey

Chapter 2 The Forensic Neurological Assessment of Traumatic

Brain Injury.......................................................................................25
Donald T. Starzinski

Chapter 3 The Forensic Neuropsychiatric Assessment of Traumatic

Brain Injury....................................................................................... 43
Robert Granacher

Chapter 4 The Forensic Neuropsychological Evaluation and Report................ 67

Henry V. Soper and Arthur MacNeill Horton, Jr.

Chapter 5 Neuropsychological and Psychological Rehabilitation after

TBI.................................................................................................... 91
Fofi Constantinidou

Chapter 6 Legal Issues in Expert Testimony................................................... 119

Daniel A. Bronstein

Chapter 7 The Forensic Examiner as an Expert Witness: What You Need

to Know to Be a Credible Witness in an Adversarial Setting........ 141
Joseph A. Davis, Gregory J. Murrey, and Daniel A. Bronstein

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 vi The Forensic Evaluation of Traumatic Brain Injury

Appendix A Model Outline for the Assessment of Mild Traumatic Brain

Injury............................................................................................... 157

Appendix B Select Issues in the Forensic Assessment of Traumatic Brain

Injury with Key References from the Research Literature............. 163

Appendix C Listing of State Courts Using Federal Rule 702 or the

Daubert Standard........................................................................... 167

Index....................................................................................................................... 169

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 Dedication
This book is dedicated to Martha, Hope, and the boys.

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9075.indb 8 10/3/07 1:31:06 PM
 List of Tables and Figures
Tables
Table 1.1 Glasgow Coma Scale.............................................................................3
Table 1.2 Definition of Mild TBI — Head Injury Special Interest Group
of the American Congress of Rehabilitation Medicine.........................4
Table 1.3 Galveston Orientation and Amnesia Test (GOAT)...............................4
Table 1.4 DSM-IV Research Criteria for Postconcussional Disorder...................7
Table 1.5 DSM-IV Diagnoses and Criteria Commonly Used in TBI Cases...........8
Table 1.6 Complaints and Symptoms in Mild TBI by Category........................ 18
Table 2.1 Elements of Neurologic Diagnosis......................................................26
Table 2.2 Elements of the Medical/Neurological History..................................26
Table 2.3 Elements of the Neurologic Examination........................................... 27
Table 2.4 Diagnostic Studies by Type.................................................................28
Table 3.1 General Elements of the Neuropsychiatric History Following
Brain Trauma.......................................................................................46
Table 3.2 Common Elements of Neuropsychiatric Mental Status
Examination........................................................................................ 48
Table 3.3 Neurological Examination.................................................................. 50
Table 3.4 Structural and Functional Brain Imaging during
Neuropsychiatric Assessment............................................................. 52
Table 3.5 Common Uses of Structural Brain Imaging....................................... 55
Table 3.6 Common Uses of Functional Brain Imaging...................................... 58
Table 3.7 Important Records to Review.............................................................. 61
Table 4.1 Sample Outline of Sections for the Forensic
Neuropsychological Report.................................................................84
Table 7.1 Survey Results of Forensic Experts................................................... 143
Table 7.2 Average Responses of Forensic Examiners to Specific Survey
Questions........................................................................................... 144
Table 7.3 Standard Background, Training, and Qualifications of a Forensic
Neuropsychologist............................................................................. 147

Figures
Figure 4.1 Behavior Observation Form................................................................84
Figure 6.1 Standard Format Template................................................................ 121
Figure 6.2 Old-Fashioned Courtroom................................................................ 132
Figure 6.3 Modern Courtroom........................................................................... 132
Figure 6.4 Ranking Measurement Tool.............................................................. 134

ix

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9075.indb 10 10/3/07 1:31:07 PM
 Preface
Over the past two decades, I have seen a drastic increase in the number of traumatic
brain injury (TBI) cases that have ended up in the courtroom. As a clinical neuro-
psychologist who conducts evaluations of persons with suspected brain injuries, I
have all too often found myself sitting in a courtroom trying to defend my profes-
sional opinion and decisions. I have discovered, along with my colleagues, that to be
comfortable or at least confident in such an adversarial system, it is important to be
knowledgeable in the entire assessment of TBI and the forensic process involved.
Although there have been a myriad of publications on TBI and forensic neuro-
psychology, I could not find a text available to provide a medical and legal profes-
sional with a concise overview of the forensic assessment process and the issues in
TBI. Finding such a need, I felt compelled to draw together a group of experts in the
medical, neuropsychological, and legal professions to develop such a text. However,
the text was not designed as a comprehensive work on forensic neuropsychology,
neuropsychiatry, or even TBI, as there are many excellent authoritative texts avail-
able on these subjects. Instead, my colleagues and I have designed this test to pro-
vide both the clinician involved in forensic examinations and the legal professional
involved in personal injury litigation or legal proceedings with a general overview
of the issues and assessment process in TBI cases. Accordingly, the text begins with
an overview of the key issues involved in the forensic assessment of TBI, including
definitions and select medical diagnostic terminology that should be of particular
interest to the forensic examiner and legal professional. Subsequent chapters provide
an overview of the neurologic, neuropsychiatric, neuropsychological, and psycho-
logical forensic assessment process specific to brain injury cases.
As part of the revisions to this text, additional chapters have been added, includ-
ing a chapter on the neuropsychiatric evaluation performed by a clinical or forensic
neuropsychiatrist. Although there is a clear overlap between the forensic neurologi-
cal and neuropsychiatric assessments, there are distinct differences in focus and
areas addressed between these two medical specialties and evaluations. Additional
chapters expand on the topic of forensic testimony, and on the forensic examiner as
an expert witness.
Additionally, in the chapters on the forensic examiner as expert witness and
expert witness testimony, such issues as qualifications and credibility of the forensic
expert and admissibility of expert testimony in TBI cases are reviewed. These chap-
ters will, of course, be of particular interest and concern to the forensic examiner in
light of new court rulings and possible modifications to the admissibility of a given
forensic examiner’s testimony.
Finally, a chapter on neuropsychological rehabilitation issues after traumatic
brain injury has been added. Although this chapter does not necessarily address the
traumatic brain injury evaluation, it provides critical information for the forensic
examiners and other professionals within the forensic setting with regard to reha-
bilitation treatments or services that may be beneficial to or required for persons

xi

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 xii The Forensic Evaluation of Traumatic Brain Injury

who have suffered traumatic brain injuries. Such information may be critical in TBI
litigation as the type of treatment (possibly ongoing) and duration thereof are often
essential information within such cases.
The contributors of this book have also attempted to provide clinically useful
and practical tables and reference pages that can be used by forensic examiners and
legal professionals involved in TBI cases. It is my hope as editor that this text will be
a useful resource and overview for clinicians and legal professionals alike.

Gregory J. Murrey
Brainerd, Minnesota

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 Acknowledgments
This text would not have been possible without the dedication and diligence of
Amanda Gangl and Arlene Jones, whose excellent organizational, technical writing,
and proofreading skills were critical in its development.

xiii

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9075.indb 14 10/3/07 1:31:07 PM
 About the Editors
Gregory J. Murrey, Ph.D., A.B.P.N., received his doctorate in clinical psychology
from Washington State University and completed his specialty training in neuropsy-
chology at Duke University Medical Center. He has been named Diplomate in Clini-
cal Neuropsychology from the American Board of Professional Neuropsychology
and also holds a Diplomate from the American Board of Forensic Examiners. He
is currently on the faculty in the Graduate School of Psychology, Fielding Graduate
School, and has served as the director of Neuropsychology and Neurobehavioral
Services at the Minnesota Neurorehabilitation Hospital in Brainerd, Minnesota. He
is also a consulting neuropsychologist at the Polinsky Medical Rehabilitation Center
in Duluth, Minnesota, and at St. Josephs Medical Center in Brainerd, Minnesota. Dr.
Murrey has published and presented widely in the area of traumatic brain injury and
has served as an expert witness in forensic neuropsychology in a myriad of civil and
criminal cases related to traumatic brain injury.

Donald T. Starzinski, M.D., Ph.D., has had the privilege of extensive training
in both Western and Eastern Medicine. After completing a baccalaureate degree
summa cum laude, he earned a doctorate in psychopharmacology; receiving his
Ph.D. from the University of Minnesota before pursuing further medical studies.
After completing work for his M.D. degree, also at the University of Minnesota,
Dr. Starzinski completed a neurology residency and received certification from the
American Board of Neurology and Psychiatry. Continuing Western medical educa-
tion includes educational offerings through the American Academy of Neurology, to
which Dr. Starzinski has belonged since 1982.
Study of traditional Chinese medicine was made possible by a Bush Medical
Fellowship, prominently involving training directed by Dr. Tsun-Nin Lee in San
Francisco. Through affiliations, including the Academy of Pain Research, the Uni-
versity of California, and St. Luke’s hospital in San Francisco, Dr. Starzinski has
studied traditional Chinese medicine involving work in acupuncture, herbal medi-
cine, and Qigong. Dr. Starzinski’s career has included private practice in neurology
at the Mankato Clinic as well as work as the clinical director of the Minnesota Neu-
rorehabilitation Hospital. More recently, Dr. Starzinski has integrated his practice
of medicine to combine knowledge of both Eastern and Western Medicine. Current
clinical interests most prominently include neurological and psychiatric conditions
and wellness.

xv

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9075.indb 16 10/3/07 1:31:07 PM
 Contributors

Daniel A. Bronstein, J.D. Robert Granacher Jr., M.D.,

Professor, College of Agriculture & D.F.A.P.A.
Natural Resources President and Executive Director
Michigan State University Lexington Forensic Institute
East Lansing, Michigan Lexington, Kentucky

Fofi Constantinidou, Ph.D. Arthur MacNeill Horton, Jr.

Professor and Director Psych Associates of Maryland
NeuroCognitive Disorders Towson, Maryland
Laboratory
Department of Speech Pathology Gregory J. Murrey
and Audiology Minnesota Neurorehabilitation
Miami University Hospital
Oxford, Ohio Brainerd, Minnesota
and
Associate Professor Henry V. Soper
University of Cyprus Faculty, School of Psychology
Nicosia, Cyprus Fielding Graduate University
Santa Barbara, California
Joseph A. Davis and
Center for Applied Forensic Behavioral Developmental Neuropsychology
Sciences Laboratory
San Diego, California Ventura, California

Donald T. Starzinski
Minnesota Neurorehabilitation Hospital
Brainerd, Minnesota

xvii

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9075.indb 18 10/3/07 1:31:07 PM
 1 Overview of Traumatic
Brain Injury
Issues in the Forensic
Assessment
Gregory J. Murrey

Contents
1.1 Definitions and Criteria for TBI.......................................................................1
1.1.1 Level of Consciousness.........................................................................2
1.1.2 Posttraumatic Amnesia.........................................................................3
1.1.3 Alteration in Mental Status................................................................... 5
1.2 Diffuse Axonal Injury Due to Traumatic Brain Injury....................................7
1.3 Estimation of Premorbid Intelligence and Functioning................................. 10
1.4 Postinjury Emotional Functioning and Personality Assessment Issues........ 12
1.5 Assessment of Executive Control Dysfunctions and Impaired
Awareness Following Brain Injury................................................................ 15
1.6 Special Assessment Considerations in Mild TBI Cases................................ 17
References................................................................................................................. 19

1.1  Definitions and Criteria for TBI

The incidence of brain injury in the U.S. has been estimated to be in excess of 10
million new cases each year (Hartlage, 1990). Approximately 1.5 million Americans
sustain head injuries requiring medical attention each year, with roughly half of
these requiring hospitalization as a result (Davis, 1990). The incidence of traumatic
brain injury (TBI) in the U.S. continues to grow despite many state and national
prevention initiatives. Both the medical professional community and the lay popu-
lation have become increasingly aware of the prevalence of traumatic brain injury
and, to some degree, its clinical sequelae. Even more relevant to the readers of this
text is the fact that a number of lawsuits and forensic cases related to traumatic
brain injury have increased exponentially over the past decade. Certainly the TBI
caseload percentage of neuropsychologists and select neurologists has also increased
dramatically. The purpose of this chapter is thus to provide a general overview of the
forensic assessment issues in cases of traumatic brain injury. The etiologies of TBI
are quite varied, but include motor vehicle accidents, falls, on-the-job injuries, and
assault. In the forensic evaluation, it is critical for clinical and legal professionals to

9075.indb 1 10/3/07 1:31:08 PM

  The Forensic Evaluation of Traumatic Brain Injury

have a clear set of criteria for and definition of TBI. In the medical, neuropsychologi-
cal, and legal literature, there are a variety of definitions and criteria set forth on the
matter of TBI; however, existence and severity of a TBI are usually established by
the following (Evans, 1992; Esselman and Uomoto, 1995):

1. The occurrence and period of loss of consciousness

2. The degree of loss of memory for events immediately before or after the
accident
3. The degree and duration of alteration in mental state at the time of the
accident
4. The degree of focal neurological deficits (which may or may not be transient)

It needs to be emphasized that in both the research and clinical settings, various
definitions and criteria continue to be used for specific diagnosis and classification
of traumatic brain injury. Both standardized and less formalized methods are used
as part of the classification and identification of such. Some of the more commonly
used assessment tools and clinical terminology in the diagnosis and classification of
traumatic brain injury are discussed in later sections of this chapter. It should also
be remembered that, depending on the setting and clinician making the diagnosis,
other terms may be used in lieu of traumatic brain injury. Other terms or diagnoses
equivalent to traumatic brain injury may include closed head injury (CHI), concus-
sion, head trauma, or brain trauma.
Finally, a variety of factors may help to predict prognosis of recovery following
traumatic brain injury. The most common psychosocial factors affecting the progno-
sis and recovery outcome after TBI include the following:

1. Age at TBI onset (older clients tend to show poorer recovery prognosis)
2. History of previous brain injury or neurological impairments
3. Premorbid intellectual, academic, and vocational functioning
4. History of chemical abuse
5. Premorbid history of psychiatric disorder
6. Premorbid history of cognitive dysfunction

1.1.1 Level of Consciousness

Level of consciousness is most commonly assessed by medical or emergency per-
sonnel using the Glasgow Coma Scale (GCS) soon after the injury (Teasdale and
Jennett, 1974; see Table 1.1). The GCS formally and objectively assesses eye, motor,
and verbal responses to various external stimuli. Total GCS scores range from 3
(no response to stimuli) to 15 (normal response to stimuli), and GCS scores of 13 to
15 are considered to be within the normal range of functioning. The definition and
criteria for mild TBI, as established by the American Congress of Rehabilitation
Medicine (1993; see Table 1.2), do not require a loss of consciousness. However, loss
of or change in level of consciousness postinjury does provide the medical profes-
sional or other clinician with important information that is helpful in determining
the existence and severity of a brain injury.

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 Overview of Traumatic Brain Injury 

Table 1.1
Glasgow Coma Scale
(Recommended for Ages 4 to Adult)
Eyes Score

Open
Spontaneously 4
To verbal command 3
To pain 2
No response 1

Best Motor Response

To Verbal Command
Obeys 6

To Painful Stimulus
Localizes pain 5
Flexion — withdrawal 4
Flexion — abnormal 3
Extension 2
No response 1

Best Verbal Response

Oriented and converses 5
Disoriented and converses 4
Inappropriate words 3
Incomprehensible sounds 2
No response 1

GCS Total 3–15

Source: Adapted from Teasdale, G. and Jennett, B.,

Lancet, 2, 81–84, 1974. With permission.

1.1.2 Posttraumatic Amnesia

Another important criterion to be considered in the assessment of TBI is the level of
posttraumatic amnesia (PTA), which refers to the loss of memory for events imme-
diately before or after the accident, and typically includes an inability or reduced
ability to effectively process information or stimuli (visual or otherwise) postinjury.
The level and duration of PTA can certainly correlate with the degree of loss of
consciousness; however, the existence and duration of PTA can be difficult to deter-
mine. A formal, semi-standardized method of assessing PTA is the Galveston Ori-
entation and Amnesia Test (GOAT) (Levin et al., 1979; see Table 1.3). The GOAT
quickly screens a patient’s orientation to self, place, and time as well as assesses
the existence and degree of anterograde (postinjury) and retrograde (prior to the
injury) amnesia (memory loss or memory processing deficit). Scores on the GOAT
range from 0 to 100, with 76 to 100 within the normal range and 65 or lower in the
impaired range. Although the GOAT is a commonly known and utilized instrument

9075.indb 3 10/3/07 1:31:08 PM

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