Litigation Defenders

The Michigan Court of Appeals recently ruled that video recordings of an independent neuropsychological examination are not permitted under Michigan’s court rule MCR 2.311(A).

The ruling was issued in Schaumann-Beltran v. Gemmete, 2020 WL 7271068, (Mich. Ct. App. Dec. 10, 2020, a case in which a traumatic brain injury was alleged. The appellate court reversed the trial court’s decision that it had discretion to authorize video recording as a less intrusive option to the examinee’s attorney being present during the examination, which is specifically authorized by the court rule.

The appellate court found that video recordings of the examination were not permitted by the language of the rule. “We therefore conclude that the trial court abused its discretion by ordering that plaintiff, or more specifically her counsel, be permitted to video record the examination.”

The court declined to consider whether third-party observation of a neuropsychological examination is always contrary to the interests of patients, litigants, and the practical and ethical concerns of neuropsychology generally. The appellate court panel directed that issue to the Michigan Supreme Court.

As explained by the American Academy of Clinical Neuropsychology, a third-party observer is contrary to the neuropsychological standard of practice, invalidating the examination and its results:

Psychological and neuropsychological tests have not been standardized in the presence of involved third party observers, and thus, it is inappropriate to compare the examinee’s results to the normative results from the standardization sample. Departure from standardized testing procedures may diminish the utility of the normative data. Thus, any factor that compromises the standard administration of a neuropsychological test may jeopardize the validity and reliability of the test’s findings.

According to the Official Statement of the National Academy of Neuropsychology:

The presence of a third-party observer introduces an unknown variable into the testing environment which may prevent the examinee’s performance from being compared to established norms and potentially precludes valid interpretation of the test results.

Neuropsychologist Christian Schutte Ph.D. said he welcomes the decision on video recording, but the issue of in-person observation/interference remains controversial. When a judge permits a third-party observer (TPO), most neuropsychologists are not willing to perform such an exam. By report, in one instance, a judge reversed the order permitting observation of the testing because no practitioner one would perform the examination under those conditions.

Attorneys remain caught between the proverbial rock and a hard place. The prevalence of traumatic brain injury claims compels independent neuropsychological examinations. Michigan’s court rule encourages the invalidation of the results of those exams when conducted in violation of the standard of practice (i.e., in the presence of a TPO).

This consequence is visited solely upon the defense during litigation because, in most cases, there is no notice or opportunity of observation of the testing and examination conducted by the plaintiff’s chosen neuropsychologist. The issue of personal observation of an examination remains alive and requires the Supreme Court’s attention.