Forensic Updates


Dr. Sam Goldstein

In this forensic update I will address one of the central issues in forensic neuropsychological evaluation, identifying and apportioning contributing etiologies to an individual’s deficits, impairment, needed treatment and prognosis. The COVID-19 pandemic, specifically our efforts to control the spread of the virus, offers an opportunity to address the role of a significant, impacting variable on our emotional, behavioral, social, vocational and family functioning. Even in the few short months since the pandemic dramatically affected all of our lives, its social, vocational and emotional impact on the plaintiffs I evaluate for defense and plaintiff attorneys has been very visible. Let me begin by offering some recently available data on the COVID-19 pandemic’s non-illness impact on all of us, offer some examples from recent cases and, finally, my opinion and how I have gone about modifying my assessments during this period of time.

A poll completed in early April, 2020 by the Kaiser Family Foundation found that 7 of 10 Americans reported that their lives have been disrupted at least somewhat by our efforts to control the Corona Virus outbreak. This represented an over 30% increase in similar reporting from just the previous two weeks. I suspect more recent surveys when completed will continue to find increasing numbers in this regard. This difference is not divided by political party affiliation as Republicans, Independents and Democrats all report similar levels of concern. Further, the majority at that time believed that the worst was yet to come. In this survey people were worried about their vocation, financial and family health. Nearly half the respondents in this and other surveys report that the crisis is adversely affecting their mental health. In April, a hotline operated by the Substance Abuse and Mental Health Services Administration reported more than a 1,000% increase compared with the same time last year in callers with emotional distress. The online therapy company, Talk Space, currently reports a 65% jump in clients since mid-February. Initial data is suggesting that suicide attempts have increased as well. A study completed by the Texas non-profit Meadows Mental Health Policy Institute suggested that if unemployment as a consequence of the Corona Virus pandemic ends up rising 5 percentage points, an additional 4,000 people could die of suicide and an additional nearly 5,000 from drug overdoses.

It should not come as a surprise that the emotional, mental health and functional response to this pandemic and our efforts to control the virus will have a differing impact depending upon an individual’s current level of functioning. Thus, individuals with sound mental health are likely to be impacted far less than someone attempting to recover from a Traumatic Brain Injury (TBI) or a life-threatening event that has resulted in Post-Traumatic Stress Disorder (PTSD).

This past month, I had the opportunity to evaluate a middle-aged gentleman robbed and assaulted at gun point in his small family business. The robbery occurred in late fall. His business was closed for the following two months, a period of time during which a significant percentage of his sales for the year usually occurred. This gentleman was so traumatized that he could not return to his store for multiple weeks, even to meet with insurance adjusters. The store was not only robbed but significantly vandalized. Many months later when the store was about the re-open the pandemic began and all businesses were closed. Although stores have now been allowed to re-open the majority of this man’s customers, all but the most loyal, have found other resources for their needs. Despite seeking both psychiatric and psychological treatment, this man has continued to struggle. In my interview with him, he lamented that were it not for the pandemic and subsequent restrictions, perhaps he might have been able to re-open his business successfully. Now he anticipates that within a short period of time he will have to close the doors of a family business that has been open for over twenty years. He was referred for assessment by Worker’s Compensation to determine when and if he can return to full time work, if treatment is still needed and the extent of permanent damage if any.

Another young woman I recently evaluated as part of a civil litigation following a TBI in an automobile accident was cleared to return to work just as the restrictions set in due to COVID-19. She is a white-collar worker in a career track, management position. Much of her job could be undertaken remotely. However, her injuries are such that she suffers from significant migraines if she spends more than a half hour in front of a computer screen. This is a problem that she did not suffer from prior to her accident. Because of this, she has been unable to return to work despite being initially cleared to do so. Multiple treatments have been tried with limited success. This circumstance has further complicated her financial status and raised questions about her future vocational stability and the extent of her damages.

Finally, an older gentleman with a moderate TBI as a consequence of a fall involved in civil litigation was just beginning to participate in multiple outpatient therapies when restrictions were set in place. Over the past five months, he has been unable to continue his treatments despite efforts to do so remotely. This limitation has very clearly set back his physical and cognitive recovery. Unfortunately, he lives alone. His further mandated isolation from friends and family has led to the onset of significant depression, a problem he did not suffer from pre-accident and one that may not have developed had he not been restricted to home.

These are but a few of the many cases I have evaluated remotely and in person over the past five months. I anticipate this will be the status quo until a vaccine becomes readily available and we return to some normalcy. At this time there isn’t any data to guide our interpretation of our societal actions to control COVID 19’s spread and the subsequent contribution to many plaintiff’s presentation, course of recovery and response to treatment, let alone any valid means to provide a long-term prognosis factoring out the societal impact of the virus. I expect this may provide “conservative” experts another variable to attribute injury symptoms and impairment to other than the litigated event. I also expect “belief driven” experts to quickly deny any role for the virus. As a scientist I reject both views. My dilemma is that scant if any research exists to guide my ability to add the impact of our current restrictions to all of the variables I evaluate so as to “see the world through the eyes of the plaintiff”.

I have long said that the best way to truly understand another person requires you to follow them around for two weeks. Unfortunately, this is not feasible. So, second best is to gather as much data from pre and post injury including: reviewing all available medical records, school and vocational records, self and others reports, organized assessment using valid and reliable tests and perhaps most important interviewing the plaintiff and family members. This is the careful process of a Forensic Neuropsychological evaluation. For now, artificial intelligence is still not a substitute for the training, experience and qualifications of an expert. Yes, we are human and thus we will make mistakes, but it is our humanness that allows us to weigh and evaluate data in a method as yet undiscovered in a computer algorithm. In my current forensic assessments, I now reserve time to ask about how the current shut down has affected the person I am evaluating. I make my best effort to reasonably understand how a plaintiff’s personality, current mental and physical health status, cognitive and intellectual abilities interact and influence the course of their symptoms, impairment and recovery. If asked by counsel I will do my best to reasonably explain how the impact of the pandemic has and will influence a plaintiff’s recovery and future functioning. For the immediate future however, my opinions on this issue will be guided by good sense more than science.◆