Forensic Issues in the Structural or Functional Neuroimaging of Traumatic Brain Injury

Abstract

It is not possible to provide a comprehensive forensic neuropsychiatric assessment of a person following traumatic brain injury (TBI) without also including within the examination, at a minimum, structural brain imaging (e.g., magnetic resonance imaging (MRI), or computed tomography (CT)). Functional brain imaging such as positron emission tomography (PET) or single photon emission computed tomography (SPECT) may be useful in very particular or special circumstances, but they should never be the modality of first choice following TBI. [1-2] Table 1 is a listing of the common structural and functional procedures available to the forensic examiner for a TBI assessment. The need for neuroimaging within a forensic assessment of TBI is based on two principles: (1) The first principle is the pathogenesis of TBI generally results in at least some organic changes to the brain, and (2): in the second principle, the forensic physician has an ethical obligation to provide the soundest opinions possible to the trier-of-fact, judge or jury. In light of the possible organic pathology associated with a TBI, the examination of a head trauma patient is incomplete without examination of the integrity of the brain if the data is to be presented in a court of law. Another very important forensic principle in a legal case of alleged TBI is that a very high percentage of those claiming mild traumatic brain injury (MTBI), may in fact be malingering or symptom magnifying. [4] If malingering of a TBI or symptom magnification of complaints to the physicians is probable, obviously the forensic examiner’s opinion will be buttressed by the absence of lesions consistent with TBI on neuroimaging. Physicians of all specialties carry an ethical obligation to assist in the application of the judicial process and to assist the courts in carrying out matters brought to them. Physicians also have an ethical obligation to testify on behalf of their patients if asked to do so, but when testifying as a treating physician, the physician is a fact witness, not an opinion witness. In particular, for forensic neuroimaging of TBI, this means that the physician will testify about the facts of the neuroimaging and how it relates to the physician’s patient including the clinical findings, treatment plan, and outcomes. As a general rule, a physician examining a TBI patient where it is known that the patient is in a legal context, should avoid issues of malingering, ratable disability impairment, whether or not the patient is telling the truth, and other factors that will have special importance in a legal forum. If the treating physician ventures into these areas, it puts at risk the doctor-patient relationship, and this should never be allowed to happen. On the other hand, the physician who has been asked to examine a patient claiming to have been injured by TBI should never imply to the examinee that a doctor-patient relationship exists. Most persons who have suffered a TBI, and then are forensically examined by neuroimaging, are generally not familiar with the exceptions to the doctor-patient relationship, which exists before the law in most modern countries. Thus, the examinee is placed in a very disadvantageous position. The examinee may incorrectly assume that the neuroimaging is being obtained to provide assistance in the diagnosis or treatment for the brain injury. This is absolutely not the case in a forensic examination; the physician is acting as an agent for the entity or person who hired him/her to perform the neuroimaging. The physician examiner in a forensic case should treat the examinee with compassion and appropriate respect, but there should be no doubt left in the examinee’s mind for whom the physician is employed. In this case, it is obviously not the patient. The examinee should always be advised of this difference within the context of the examination at the outset, and it is suggested that this be done in writing as well as verbally. [5] 1.2.