Forensic Update from the Desk of Dr. Sam Goldstein

Plaintiff attorneys handling traumatic brain injury cases eventually confront an important question about neuropsychological evaluation: When is the right time to evaluate the client? The question often arises early in a case, but the answer is rarely straightforward. Unlike an X-ray or laboratory test that documents a discrete finding, a neuropsychological evaluation captures cognitive, emotional, and behavioral functioning at a specific point in an evolving process. After a brain injury, that process may look very different at three months, six months, a year, or even later.

That creates a genuine forensic dilemma. An evaluation conducted relatively soon after the injury may provide valuable objective documentation of impairment while the difficulties are most apparent. Waiting may allow recovery to progress and provide a clearer picture of what is likely to persist. Waiting too long, however, may mean losing the opportunity to directly document the earlier impairment and requiring a retrospective reconstruction of that impairment from medical records, treatment notes, family observations, employment information, and the individual's recollection.

For that reason, the question I am often asked, "How long after a traumatic brain injury should I wait before obtaining a neuropsychological evaluation?" may not be the most useful. A better question is, "What do I need the evaluation to demonstrate?"

That distinction can significantly affect the forensic value of the evaluation. Evaluate early, and you may obtain excellent documentation of substantial impairment, even if you cannot confidently predict which problems will persist. Wait longer, and you may have a stronger basis for discussing permanence and prognosis, but less direct evidence of the cognitive and emotional difficulties that occurred during the critical months after the injury. Evaluate somewhere in between, and you may obtain an informative picture of recovery, while still confronting uncertainty about the person's ultimate outcome.

There is no universally correct time to conduct a forensic neuropsychological evaluation after traumatic brain injury. There is also no magic point at six or twelve months when temporary impairment suddenly becomes permanent. Each approach offers advantages but also imposes limitations. The value of the timing depends on the questions the evaluation is intended to answer.

A neuropsychological evaluation provides a detailed assessment of functioning at a specific point in time. That distinction is especially important in a traumatic brain injury case because the individual being evaluated is not neurologically, cognitively, emotionally, or functionally static. Recovery occurs. Symptoms change. Compensation develops. Treatment intervenes. Medications change. Pain may improve or persist. Sleep may normalize or remain disrupted. Emotional reactions to the injury may emerge or diminish. Some cognitive difficulties improve, while others become more apparent as the individual attempts to resume increasingly complex occupational, educational, family, social, and community responsibilities.

Timing, therefore, should not be viewed solely as a medical decision. In forensic work, it is also a strategic decision. As a forensic neuropsychologist, my role is to explain what can reasonably be concluded at different points in recovery and the limitations of each approach.

The Advantages and Disadvantages of Early Evaluation

There can be considerable value in conducting an evaluation relatively soon after an injury, assuming the individual is medically stable and able to participate meaningfully in a comprehensive assessment. An early evaluation provides contemporaneous documentation of cognitive, emotional, and behavioral functioning during the early stages of recovery, something that can never be reconstructed perfectly later.

This can be particularly valuable when there is reason to believe that meaningful impairment may improve substantially over time. If an individual demonstrates significant difficulties with attention, processing speed, memory, executive functioning, emotional regulation, language, visuospatial abilities, or cognitive endurance several months after an accident, those findings become part of the documented longitudinal history. The evaluation can establish a post-injury baseline against which subsequent functioning can be compared.

There is a clear forensic advantage to having objective information rather than attempting, years later, to reconstruct how impaired someone may have been in the months after an accident. Medical records and family observations can be valuable, but they do not provide the same information as a comprehensive neuropsychological assessment conducted during that period.

The disadvantage is equally important. An early evaluation may offer an excellent description of current functioning but a much weaker basis for opinions about permanence. The brain and the individual may still be recovering. Rehabilitation may be ongoing. Medication may be changing. Pain, fatigue, sleep disruption, emotional distress, and other factors may influence performance. Some deficits documented in the early stages of recovery may improve substantially. Thus, an early evaluation can provide a strong answer to the question, "Where is this person now?" It may provide a much less certain answer to the question, "Where will this person ultimately be?"

The Advantages and Disadvantages of Evaluating Around Six Months

An evaluation conducted about six months after the injury can offer a different perspective. By then, there has often been enough time to observe the direction and pace of recovery. Acute medical issues may have stabilized, rehabilitation may have progressed, and the individual may have attempted to return to work, school, driving, parenting, household responsibilities, recreation, or other activities that place meaningful demands on cognitive functioning.

This period can be especially informative because impairment is not defined solely by whether someone can perform adequately during several hours of highly structured neuropsychological testing. The more important forensic question is often whether that person can consistently translate cognitive capacity into effective functioning in everyday life.

At this stage, discrepancies may begin to emerge between apparent recovery and actual functional recovery. Someone may look substantially better than immediately after the accident and perform reasonably well on certain structured measures, yet remain unable to tolerate a full workday, multitask efficiently, organize complex responsibilities, remember appointments, regulate emotions under stress, manage competing demands, or sustain the productivity level demonstrated before the injury. An evaluation at this point can therefore document not merely impairment but the evolving trajectory of recovery.

This timing also has disadvantages. Six months is not a magical dividing line between temporary and permanent impairment. Significant recovery may continue beyond this point. Treatment may still be underway, and the individual's ultimate vocational, educational, and functional outcome may remain uncertain. An evaluation at six months may provide considerably more information about trajectory than an earlier evaluation, but conclusions about long-term prognosis should still be offered cautiously.

In some cases, this interval provides the precise balance between documenting ongoing impairment and allowing sufficient time for recovery to unfold. In other cases, the most important questions may not yet be answerable.

The Advantages and Disadvantages of Waiting a Year

There are equally legitimate reasons to wait longer. When the central issues involve permanence, long-term disability, future earning capacity, future treatment needs, employability, or lasting loss of quality of life, an evaluation conducted closer to a year after the injury may provide a stronger basis for addressing them.

By this point, spontaneous recovery has had substantially more opportunity to occur. Rehabilitation has often progressed, treatment response can be evaluated, and the person's attempts to resume ordinary life provide a much richer source of functional information. Persistent cognitive, emotional, or behavioral problems at this point may carry different significance than identical findings documented shortly after the injury.

Waiting, however, also carries a cost. If no comprehensive assessment was conducted earlier, the forensic neuropsychologist must reconstruct the individual's prior level of impairment using emergency records, hospital records, rehabilitation information, employment records, educational records, family observations, treating professionals, and other collateral evidence. Those sources may be excellent, but they are not equivalent to contemporaneous neuropsychological data.

There is another potential disadvantage. Improvement between the accident and the eventual evaluation may make it more difficult to demonstrate how substantially impaired the individual was during the earlier recovery period. A person who has made a meaningful recovery by the time of the forensic evaluation may still have experienced many months of significant disability. A later evaluation cannot travel backward in time to objectively measure that earlier impairment.

Waiting longer may therefore strengthen opinions concerning persistence and prognosis while sacrificing some ability to directly document the earlier course of recovery. It provides a clearer view looking forward, but potentially a less precise view looking backward.

Sometimes the Most Informative Answer Is More Than One Evaluation

In some cases, serial assessment may provide the most complete picture. An early evaluation, followed by a later one, can demonstrate change rather than requiring the expert to infer it retroactively. This distinction can be extremely important in litigation because traumatic brain injury is often best understood as a process rather than a single static event.

Suppose an individual demonstrates substantial cognitive impairment several months after a collision, shows meaningful improvement a year later, and continues to exhibit weaknesses in processing efficiency, memory, executive functioning, emotional regulation, or cognitive endurance. That later improvement does not invalidate the earlier impairment. Instead, the evaluations together demonstrate the course of recovery, including what improved and what remained problematic.

The opposite result is equally important. If subsequent evaluation shows that functioning has largely normalized, that finding must also be acknowledged. A forensic neuropsychologist should not be retained to prove impairment. The expert should be retained to determine whether impairment exists, its probable causes, its functional significance, its relationship to the injury, and, when reasonably possible, its likely course.

Serial evaluation also has disadvantages. It increases expense, requires additional time from the client, and creates multiple sets of data that will appropriately be subject to scrutiny during discovery, deposition, and trial. Repeated exposure to some neuropsychological measures can also introduce practice effects, requiring thoughtful selection and interpretation of tests. Serial assessment therefore should not become automatic merely because multiple evaluations might provide more information. It is most useful when documenting change itself is important to understanding the case.

Start With the Forensic Question

The most useful approach to timing is to start with the purpose of the evaluation rather than the calendar. If the objective is to document the extent of impairment during the active recovery period, an earlier assessment may be valuable despite greater uncertainty about permanence. If the objective is to examine the recovery trajectory and emerging real-world functioning, an intermediate evaluation may offer advantages. If the central issues concern permanence, future functioning, disability, employability, future care, earning capacity, or long-term damages, allowing the clinical course to mature may provide a stronger basis for those opinions.

None of these choices is inherently superior. Each has trade-offs. Early evaluation offers contemporaneous documentation but greater prognostic uncertainty. Intermediate evaluation provides information about the recovery trajectory but may still precede the individual's ultimate outcome. Later evaluation offers a stronger perspective on persistent impairment and prognosis but requires more retrospective reconstruction of earlier functioning. Serial assessment can demonstrate change directly but introduces additional expense, complexity, and methodological considerations.

Therefore, no standard interval should automatically trigger a forensic neuropsychological evaluation. The timing should serve the forensic question rather than letting an arbitrary date on the calendar dictate the strategy.

Neuropsychological Testing Is Only Part of the Evidence

Attorneys should also resist treating neuropsychological test scores as the case itself. A strong forensic evaluation integrates the mechanism and severity of injury, acute medical findings, neuroimaging, neurological status, premorbid functioning, educational and vocational history, rehabilitation records, medication, sleep, pain, psychiatric and psychological factors, collateral observations, symptom and performance validity, post-injury functioning, and the neuropsychological findings.

A low score by itself does not establish traumatic brain injury, causation, disability, or permanent impairment. Conversely, a score within broadly normal limits does not necessarily indicate that the individual has returned to premorbid functioning. A highly capable individual can experience meaningful decline and still produce scores within conventional normative ranges. Likewise, structured testing conditions may not replicate the sustained cognitive demands, distractions, fatigue, multitasking, interpersonal pressures, and unpredictability encountered during an actual workday.

The broader forensic question is whether the complete record presents a coherent account of what changed, when, why, and how recovery unfolded, how the changes affect the person's life, and whether alternative explanations adequately account for the findings. Timing is an important part of that analysis, but it is never the entire analysis.

Keep the Treating and Forensic Roles Clear

I encourage attorneys to consider one additional issue when arranging neuropsychological evaluations in TBI cases. Be cautious about designating the treating neuropsychologist, psychologist, therapist, or other treating clinician as the principal forensic expert. Treating professionals and forensic experts occupy fundamentally different roles, and there are good reasons to preserve that distinction. The treating clinician's primary responsibility is to the patient's clinical welfare. Treatment requires trust, advocacy, therapeutic decision-making, flexibility, and an ongoing relationship. The clinician seeks to help the patient improve.

The forensic expert has a distinct responsibility. The forensic neuropsychologist evaluates the evidence objectively and answers the referral questions posed. This includes considering information that supports the client's claims as well as information that does not. The retaining attorney may not always agree with every conclusion the forensic expert reaches, but that independence is precisely what gives a well-conducted forensic evaluation its credibility.

Combining treatment and forensic roles can create unnecessary complications involving objectivity, discovery, testimony, boundaries, perceived bias, and the nature of the professional relationship. It can also place a treating professional in the difficult position of serving as both a therapeutic advocate and an independent evaluator.

In significant TBI litigation, I prefer to keep these roles distinct. Let the treating professionals treat. Let them document what they observe, the diagnoses they reach, the interventions they provide, and the patient's response to treatment. Let the forensic neuropsychologist independently examine causation, cognitive and emotional functioning, validity, functional consequences, prognosis, alternative explanations, and the relationship between the injury and the individual's current condition.

A Different Timing Problem for the Defense: When There Is Only One Rule 35 Examination

The timing question can become even more consequential from the defense perspective when the defense is limited, whether by rule, court order, agreement, or practical reality, to a single Rule 35 neuropsychological examination. In that circumstance, the defense may not have the luxury of evaluating the plaintiff early and then returning a year later to determine what improved, what persisted, and what can reasonably be considered long term. Therefore, the decision about when to use that examination deserves particular consideration.

An early Rule 35 examination offers clear advantages. It allows the defense expert to assess the plaintiff directly while the complaints and alleged limitations are still close in time to the injury. The examiner can evaluate cognitive and emotional functioning, performance and symptom validity, alternative explanations for reported difficulties, premorbid factors, and the relationship between objective findings and the plaintiff's reported level of disability. An early examination may also provide information that helps counsel understand the case well before deposition, mediation, settlement discussions, or trial.

The disadvantage is that an early examination may consume the defense's only opportunity to independently evaluate the plaintiff before the course of recovery is known. If the plaintiff subsequently improves substantially, the earlier findings may no longer accurately reflect functioning at the time damages are considered. If difficulties persist, the defense expert may be asked to offer opinions about permanence based on an examination conducted while recovery was still underway. The very feature that makes an early examination valuable, its proximity to the injury, can therefore become its principal limitation when the questions later shift toward permanence and future damages.

Waiting presents a different set of advantages and disadvantages. A later Rule 35 examination may provide the defense expert with a more mature clinical picture. By then, the plaintiff may have completed substantial treatment, attempted to return to work or other important activities, and accumulated a longer record of actual functioning. The examiner can consider not only what the plaintiff reports but also what has happened over time. Claims involving permanent cognitive impairment, inability to work, future care, diminished earning capacity, and lasting loss of quality of life can be evaluated against a more developed factual record.

Yet waiting also carries risk for the defense. The expert loses the opportunity to directly observe functioning during the earlier recovery period and must rely more heavily on records and retrospective reports to understand it. Important settlement or litigation decisions may have to be made without an independent neuropsychological examination. Waiting too long may also create practical scheduling, discovery, disclosure, or trial-preparation difficulties.

This makes the defense timing question somewhat different from the broader question of when neuropsychological evaluation is most clinically informative. If only one independent examination is available, the issue is not simply when testing would be useful, but when that single examination is likely to have the greatest forensic value. That may depend on the nature of the claimed injury, the severity of the initial findings, the course of treatment, the plaintiff's return to work or other activities, the damages alleged, the opinions offered by treating and retained experts, and the case's procedural timetable.

There is no universally correct answer for the defense either. An early examination may be strategically valuable because it documents functioning near the time of injury and provides information as the case develops. A later examination may be more valuable when the principal disputes involve permanence, future disability, employability, or long-term damages. When only one Rule 35 examination is available, however, the tradeoff becomes particularly important because choosing one point in the recovery process may mean relinquishing the opportunity to independently examine the plaintiff at another point.

For defense counsel, the question may be framed somewhat differently: "If I have only one opportunity for an independent neuropsychological examination, at what point will that examination answer the questions most likely to matter in this case?" Ultimately, that is a litigation decision rather than a neuropsychological formula. The forensic neuropsychologist can explain what is likely to be gained or lost by examining at different stages of recovery, but the timing must be considered in the context of the claims, defenses, damages, discovery, and anticipated course of the litigation.

Conclusion

Ultimately, the question is not simply, "When should a forensic neuropsychological evaluation occur?" It is, "What question does the evaluation need to answer?" Early, intermediate, later, and serial evaluations each offer useful information, but they provide different information and carry different limitations. Understanding those tradeoffs lets you match the timing of the evaluation to the needs of the case rather than an arbitrary timetable. Once the purpose of the evaluation is clear, the question of when to evaluate becomes much easier to answer.