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Scenario 1

A neuropsychologist performed an independentexamination, the examinees third, upon referralfrom a workers compensation insurance com-

pany. The examinee was three years status postan unwitnessed injury in which a 175-pound steel

beam fell ten feet, striking the workers head, breaking his hard hat and causing him to fall tothe ground and experience an uncertain loss of consciousness and an uncertain period of altered consciousness. Notably, he had been workingwhile diagnosed with walking pneumonia. After his accident, he was taken to a company nurse

but refused medical treatment and went homefor the rest of the day and the weekend. He report-edly slept most of the weekend, and apparentlyassumed that his symptoms of dizziness, nausea,confusion and several blackouts were results of his pneumonia. After the weekend, he attempted to return to work for several days but continued to have intermittent symptoms and was senthome each day. During the f irst week, his symp-toms failed to improve, and he developed intenseheadaches. After a blacking out episode, hiswife took him to the emergency room.

The examinees headaches, dizziness, nauseaand variable and intermittent confusion contin-ued, but while his symptoms abated somewhat,his headache severity persisted. He subsequently

received continuing assessment and treatmentthat over the next two years included multiple

physicians with multiple specialties, without sig-nificant benefit in terms of primary persistentchronic head pain symptoms, as well as familycomplaints of problems with information pro-cessing, memory and irritability and anger. Hedid not return to work and was placed on short-term and then long-term disability.

On two occasions, the examinee received inpa-tient psychiatric hospitalization after bouts of severe depression with homicidal and suicidalthoughts and personality deterioration. Thesewere associated with reports of difficulty copingwith pain, aggressive outbursts and fear of hurt-ing family members. Diagnostic assessments con-tinued and a tentative diagnosis of posttraumaticepilepsy was made based on variable EEG assess-ments, while CT and MRI f indings revealed acuteright frontal lesion that resolved on CT but notMRI, along with some evidence of an additionalolder (pre-injury) lesion also in the right frontallobe. Sleep studies corroborated patient and fam-ily report of significant sleep disturbance. Primarytreatments, however, were focused on chronic painmanagement and adjustment related problems,with perhaps overly aggressive medication man-agement. At the time of his most recent inde-

pendent examination, he had been enrolled in aresidential, dual focused chronic pain and brain

Chapter 12

ETHICAL CHALLENGES IN THE NEUROPSYCHOLOGY OF PAIN, PART I

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injury rehabilitation program. He had made mea-surable overall progress, albeit against a backdropof a sawtooth pattern of functioning, and was beingtransitioned to a modified intensive outpatienttreatment program.

This third independent examination wasscheduled by the workers compensation insur-ance case manager after discharge from residen-tial treatment. The insurance company refused authorization for outpatient treatment and madea settlement offer that was rejected by the patient,

who refused to negotiate and insisted on contin-ued treatment. The case manager selected and scheduled an independent examiner with no train-ing, knowledge, experience or recognition inchronic pain disorders, despite recommenda-tions from the treating physician and neuro-

psychologist for an examiner experienced withchronic pain disorders. Based on his record reviewand examination, he diagnosed malingering and concluded that the examinees behavior was bestexplained by sociopathy, opining that continued medical treatment was unnecessary and would not be beneficial.

Upon receipt of this independent examinersreport by the workers compensation case man-ager, all workers compensation medical and wage benefits were immediately discontinued.The previously supportive employer terminated the patient upon recommendation of their attor-ney. The workers compensation case manager informed the treating practitioners of the resultsof the independent examination and instructed them to discontinue all treatment and medica-tions. Without medical benefits or compensation

payments, the patient paid out of pocket for areduced medication regimen and limited outpa-tient treatment. He appealed the case. Althoughhe was granted social security disability benefits,he accrued increasing debt and interest chargesfrom borrowing to pay bills. He also sustained drastically increased personal and family stresses,a significant interruption in his treatment, and complication of his symptoms and course. Hedeteriorated in physical, neuropsychological, and

interpersonal status. After one year of enduringnumerous insurance company attorney delaysfor an appeal hearing, he won the appeal and all

benefits were restored.The unqualified diagnosis of malingering

and the conclusions and recommendations listed in the report were offered based on seeminglysupportive evidence from interview, neuropsycho-logical examination, and medical record review.Despite the appearance of providing sufficientsupport, a critical review of the examination and

report revealed both a selective review thatexcluded more prominent disconfirmatory evi-dence, and several critical conceptual and method-ologic errors.

With regard to this evaluation, the diagnosisof malingering, which had significant conse-quences for harming this patient, was considered

problematic for several reasons. The examina-tion was conducted by a professional in a subjectarea outside his expertise. The examiner con-ducted a very brief interview with selective med-ical record review. The examiner performed anincomplete review or consideration of historicalinformation, including critical disconfirmatoryinformation. The examiner failed to adequatelyconsider differential diagnostic factors. Theexaminer did not include any of the many appro-

priate pain complaint response bias measures.And, the examiner offered a strong and unquali-fied opinion without appropriate recognition of the numerous important conceptual and method-ological limitations.

Relevant Ethical Issues

CompetencePerformance of an examination, especially a moredemanding medicolegal examination for whichchronic pain is the primary complaint, despitelacking specific training, experience and com-

petence in this area violates General Principles A,B and D. These relate to efforts regarding promot-ing benefit and avoiding harm (A), managing

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conflicts of interest to avoid harm (B), and pro-tecting fairness and justice through precautionsagainst insufficient competence and experience(D). It also fails the specific obligations pre-scribed in at least standards 2.01 (services onlywithin boundaries of competence, education,experience), 2.04 (basing judgments on knowl-edge of the discipline) and 3.04 (avoiding poten-tial harm).

Assessment

The examiner conducted a brief and insufficientinterview based on report content, listing of onehour by the examiner, and wife report of it actu-ally lasting thirty minutes or less. The examiner also failed to obtain and/or adequately reviewsufficient premorbid medical, work, militaryrecords, the records of the most recent treati-ng rehabilitation neuropsychologist, or familyrecords. Notably, evidence from pre-injury mili-tary, employment records and family reportindicate an adaptive history that is inconsistentwith sociopathy and malingering (e.g., played onarmy baseball team even with a fractured fibula,had very good work performance reviews, anaverage of fifteen hours overtime per week for the six months prior to his injury, and workingwith pneumonia at the time of his injury; posi-tive family functioning reported by family and coworkers that is notable for absence of behav-ioral or emotional problems or conflicts). There-fore, in addition to violating Principles A, B, C(Integrity: ensuring accuracy), and D, the exam-iner also violated Standard 3.04 (avoiding poten-tial harm), in addition to obligations relating toassessment.

Standard 9.01 (Bases for Assessments)requires that opinions be based on sufficientinformation and techniques to substantiate find-ings. Further, the failure to include appropriate,direct measures of pain response bias that could support a diagnosis of malingering additionallydeviates from obligations in Standard 9.02 (Useof Assessments) relating to use of appropriatetechniques with demonstrated utility (9.02.a)

and established reliability and validity (9.02.b).For example, Martelli, Zasler, Nicholson, Pickett,& May (2001) list numerous indicators of response

bias in pain symptom report. This examiner did not use any, and instead, made leaping general-izations about malingering of pain on the basisof measures of cognitive response bias. Further,the failure to acknowledge and report any of themultiple limitations in procedures and method-ology transgresses Standard 9.06 (InterpretingAssessment Results), which prescribes the tak-

ing into account limitations of interpretations.Even greater concern must be raised in light

of the additional observation of apparent confir-matory bias and selective medical record review.

Notably, all evidence potentially consistent withmalingering was considered much more stronglythan the preponderant contradictory opinions and evidence. The examiner was notably vigilantto secondary gain while completely ignoring(assessment of) secondary losses (e.g., life dis-ruption of strong premorbid coping style for deriving reinforcement, self esteem and identity,and coping with stress through traditional malerole activities at work and home). The examiner also failed to mention or consider important reac-tive contextual factors (e.g., credible perceptionof insurance company games). This, again,transgresses Standard 9.06, which requires tak-ing into account the situational and personal fac-tors that might affect or reduce the accuracy of interpretations.

The examiner demonstrated conspicuous predilection for dichotomous sociopathic expla-nations for behavior, at virtually every point ininferential reasoning. Posttraumatic organic and reactive explanations for behavior were summar-ily discounted. For example, irritability and anger outbursts were attributed to sociopathy. However,the combination of negative premorbid historyand neuroimaging evidence of a right frontalinsult, especially when combined with evidence of a high association between chronic pain disor-ders, anger, and violence (e.g., Bruns, Disorbio, &Hanks, 2003), were not considered through

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differential diagnostic review, apparently dueto a combination of bias and lack of competencein chronic pain. Further, no apparent conside-ration was made that true organic impairmentcan co-occur with exaggeration or malingering.Finally, the examiner engaged in unethical behav-ior by offering strong and unqualified opinionsdespite lack of expertise in the subject area(Standards 2.02 and 2.04); by performing an inad-equate assessment (Standards 9.01 and 9.02);and through his failure to express resulting lim-

itations of the assessment procedures (Standard 9.06), interpretations, and the resultant poten-tially harmful consequences of the conclusions.These behaviors also clearly infringed on GeneralPrinciples A (avoidance of harm) and D (Justice),which prescribes taking precautions to ensurethat their potential biases, the boundaries of their competence, and the limitations of their expert-ise do not lead to or condone unjust practices.

Conflict of InterestFinally, conducting this evaluation seems to

breach Principle A (managing conflicts of inter-est to avoid harm) and Standard 3.06 (Conflictof Interest). The latter proscribes taking on pro-fessional roles when objectivity, competence or effectiveness might be impaired, or where it mightrisk harm. Because this examiner accepted anevaluation outside of his areas of competenceand the area where he conducts clinical assess-ments, motivation and desire for more lucrativemedicolegal work presumably influenced his

judgment and decision, resulting in compromised competency of procedures, non-objectivity, and harm. The enticing financial incentives in medico-legal work are being increasingly recognized asunderappreciated threats to objectivity (e.g.,Martelli, Bush, & Zasler, 2003; Martelli, Zasler,

Nicholson, Hart, & Heilbronner, 2001, 2002;Martelli, Zasler, & Grayson, 1999). In summary,the neuropsychologists behavior violated, onmultiple counts, the spirit and the letter of theEthics Code.

Case Resolution

After the examinees workers compensation benefits were discontinued, his attorney pro-cured a copy of the independent examinationreport. His treating physician and his neuropsy-chologist prepared a lengthy letter addressing

justification for continuing treatment and con-cern for potential harm that could result fromtreatment termination. As part of this justifica-tion, the numerous methodological problems

with the report on which the insurance company based its decision were outlined in detail. Rec-ommendations were made for continued treat-ment at least until an independent examinationwas performed by a qualified expert. The letter,which included references to all of the concernsdelineated in this scenario, was copied to theindependent examiner, along with an note express-ing concern that the issues raised in the letter addressed several apparent ethical breaches and that discussion seemed necessary.

When the insurance company refused to

reconsider their decision, the patients wife, after collaboration with the patient, family, attorneyand state board of disability rights, appealed thedecision and began completing a formal com-

plaint against the examiner with the state licens-ing board. Because of the family decision to fileformal complaint, no further contact or actionwas taken by the treating doctors, and the exam-iner also made no attempt at contact.

Conclusions and Recommendations

In this scenario, a neuropsychologist performed an independent examination and diagnosed malingering in an individual who was experienc-ing chronic pain and persistent cognitive seque-lae following a blow to his head. This diagnosis

produced significant negative consequence for thesubject in terms of health care access, finances,relationships within the family, and general func-tioning. However, the assessment methodology,


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interpretations, conclusions and recommenda-tions offered in the independent examinationreport clearly failed to satisfy several aspirationalguidelines and several specific Ethical Standardsoutlined in the 2002 APA Ethics Code. An inade-quate evaluation that transgressed numerous eth-ical standards served as the basis for a diagnosisthat produced significant life consequences and the penultimate ethical breach the careless and unjustified infliction of harm.

Martelli and Zasler (2001), in one of the major

volumes on pain management, addressed ethicalissues relating to competency and offered a check-list summary of guidelines for evaluating pro-fessional expert qualifications in chronic pain.This checklist was employed to rate the neu-ropsychologist in this scenario. The neuropsy-chologists score of 0 of 48 was included in theletter written to the insurance company, and copied to the neuropsychologist, to argue against theacceptance of the malingering diagnosis and ter-mination of benefits. A successful appeal took one year to reverse the insurance decisions thatwere based on the deficient examination of theneuropsychologist, at a considerable psycholog-ical cost to the individual and his family.

The positive changes in the 2002 Ethics Codemore specifically define competence and empha-size disclosing limitations and promoting more

just, equitable and transparent practice. The quali-fications summaries offered by Martelli and Zasler (2001) in the areas of both chronic pain and braininjury (available at http://villamartelli.com) canassist in specifically assessing extent of compe-tency and in prescribing activities to increase or maintain professional competency in the neuro-

psychology of pain.

Scenario 2

An experienced, well-known and respected neu-ropsychologist who specializes in forensic neu-ropsychological assessment agrees to performan injury related clinical evaluation on a local

chiropractor. The neuropsychologist had received treatment at the chiropractors office over at afive-year period and had even been treated directly by him on at least couple of occasions.The chiropractor was seen for a neuropsycho-logical evaluation one week after being hurtaccidentally while shopping at an industrial con-struction store. He was struck in the head by amalfunctioning metal spring-loaded securitycamera and was knocked to the floor. He sus-tained a loss of consciousness of approximately

fifteen minutes, experienced a three-hour period of posttraumatic amnesia (PTA), and sustained a

back injury, per emergency room records. Hewas released from the emergency room severalhours after arrival. The neuropsychological report,which was copied to the clients attorney, indi-cated twenty-four hour period of PTA based oninterview of the patients wife, and reported sig-nificant cognitive deficits, significant emotionaldistress, and head and back pain. Despite a rea-sonable neuropsychological battery, only veryweak checklist measures of pain and emotionalstatus were administered, along with a singlemeasure of response bias. A diagnosis of mild tomoderately severe traumatic brain injury (TBI)was given. Emotional distress and pain were notconsidered as possible influences on neuropsy-chological test findings. However, pain and dis-tress were offered as explanations for a borderline

performance on the symptom validity measure. No recommendation or referral for psychotherapy,or any strategies for reducing emotional distress,were offered. The neuropsychologist followed the

patient and reported in a note a couple of weekslater that he was limiting scope of treatment toassessment and individual and family consulta-tion to avoid a dual relationship that would beincurred with psychotherapy provision.

Several months later, the neuropsychologist(NP1) made a referral to another neuropsycho-logist after the patients insurance changed toa company for which he was not a provider. Upto that point, no recommendation was made for reducing emotional distress. The patient was


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seen by the second neuropsychologist (NP2), anexperienced TBI specialist, and evaluated twomore times over a two year period. He was alsoreferred to a psychiatrist for pharmacologictreatment of depression and to a multidiscipli-nary chronic pain management clinic. He subse-quently underwent corrective back surgery.

A third neuropsychologist (NP3) was retained by the defendants attorney to do an independ-ent exam (IE) as a personal injury trial dateapproached. He was retained with the under-

standing from an initial record review that NP1,who was a friend, had withdrawn from treatment.

NP3, on record review of repeated previous test-ing found indices of reduced motivation, incon-sistent and improbable performances, somatichypervigilance, and even observations that paininterfered with attention during testing and inter-view. On independent examination, he found thatthe chiropractor demonstrated: (a) Failure on sev-eral less well known response bias indicators;(b) stark inconsistencies throughout the evalu-ation; (c) clearly disruptive pain behavior thatinterfered inconsistently with attention duringsimple interview and testing (e.g., scores upto twice as impaired on similar tasks when heappeared to be having exacerbation of pain);(d) significant emotional distress, includinginterview-elicited evidence of a fairly extreme per-sistent rumination about perceived mistreatmentfrom his injury and need to seek justice for thewrong; and (e) generalized severe impairmentsworse than usually seen in severe TBI and with-out evidence of any improvement across time.A report was issued that reported persistent neu-ropsychological deficits being due primarily dueto an interaction of emotional distress, chronic

pain, and motivation to exaggerate impairment.Aggressive psychological intervention wasrecommended.

After completing the independent examina-tion, and while reviewing additional records, NP3learned that NP1 had recently been retained bythe plaintiffs attorney and performed a completeforensic examination that included reviewing of

all records. He testified in a deposition that the patient was permanently disabled with severeneuropsychological impairments due to the TBI.His test performance was deemed valid, despitesome suspicious symptom validity test scores,

because he consistently scored in the same poor range across all testings post injury. Moreover,

NP1s deposition testimony asserted that he had known the patient pre-injury, understood his

personality and cognitive functioning, had good comparative data, and therefore had special quali-

fication for more validly assessing post injurychanges. In response to questioning about why arecommendation for psychotherapy and/or painmanagement was not made, he asserted that itwas because he knew the patients personalitywas consistent with a need to appear normal and feared suggestion of psychotherapy might makehim worse.

Relevant Ethical Issues

Multiple RelationshipsThere are several important ethical problems inthis complex scenario. The most salient problemis the engagement in a multiple relationship thatinitiated a host of subsequent breaches related toassessment and conclusions. NP1 chose to initiatea clinical relationship with a person with whomhe had a pre-existing professional relationship.Standard 3.06 (Conflict of Interest) proscribestaking on a professional role when personal (or scientific, professional, legal, financial, or other)interests or relationships could be expected toimpair objectivity or expose the client to risk of harm. Similarly, Standard 3.05 (Multiple Rela-tionships) proscribes entering into a multiplerelationship if the relationship might reasonablyimpair objectivity, competence, or effectivenessin performing psychological duties, or otherwiserisk harm to the person. No reasonable excep-tions to compliance with these standards existed in this case, and several other competent neuro-

psychologists were readily available, including


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some with much more pain experience. No indi-cations were given that the multiple relationshipwas considered even potentially problematic, and the report did not indicate any potential limi-tations or dangers as a result of this preexistingrelationship. Only in later notes was the issue of multiple relationship conflicts raised, but onlyregarding the provision of psychotherapy. A sub-sequent report indicates that NP1 reasoned that

because neuropsychological assessment and con-sultation services were objective, multiple roles

presented no conflict. NP1s reasoning and interpretation of ethical

standards regarding multiple relationships isclearly problematic. Perhaps only in an ideal world,if one assumes that two neuropsychologists could

produce exactly the same interview and testresults, would we expect all neuropsychologiststo reach identical conclusions. In the real world,there is frequently disagreement about even thesame test results, situations are often complex,and lawsuits involving mild brain injury are fre-quently accompanied by widely discrepant find-ings and opinions. In this case, examination of theassessment findings and recommendations from

NP1 strongly suggest that this experienced and competent neuropsychologists objectivity wassignificantly compromised by the multiple rela-tionships. This lack of objectivity was manifestin inadequate assessment procedures, an uncrit-ical diagnostic approach, and uncritical judgmentthat compromised his findings and the welfareof the patient in several ways, especially in termsof delayed treatment and prolonged disability.Hence, in addition to Standard 3.06 (Conflict of Interest), Standard 3.04 (Avoiding Harm) seemsto have been breached. The spirit of the EthicsCode was also violated in terms of Principles A(striving to promote benefit and avoid harm), B(managing conflicts of interest to avoid harm),C (promoting accuracy and truthfulness), and D(protecting justice and fairness and avoiding bias).

Further, suspicion must be raised that the fail-ure to recommend treatment reflects not only non-objectivity and poor judgment due to contradictory

relationship role influences, but also the con-flicting interests of the examiner. Chart notesindicating examiner intention to avoid a dualrelationship by not providing psychotherapy indi-cates an awareness of need for this treatment.A failure to make a referral to someone withwhom there would not be a dual relationshipsuggests the possibility that such a referral wasavoided for one of more of the following reasons:(a) overemphasis on brain injury interpretationsof cognitive symptoms to justify report findings

and/or reach findings favorable to the familiar clients preference for organic explanations of dif-ficulty and/or his lawsuit; (b) avoidance of expos-ing NP1s questionable dual relationship and reasoning regarding it; and/or (c) avoiding the

possibility of losing income (both existing clini-cal income and anticipated more lucrative futuremedicolegal income) by referring to someonenot hampered by a dual relationship. These like-lihoods are supported by the following events:(a) when the clients insurance was changed to anetwork to which NP1 did not belong, a referralto another provider was made, and that provider initiated both psychological treatment and spe-cialty pain management referrals; (b) NP1 becamere-involved when he could again be reimbursed,

by providing even higher paid medicolegal assess-ment and testimony; and, (c) NP1 asserted, at both

points of his service provision with this client,that his previous relationship was advantageous(i.e., providing more pre-injury baseline informa-tion for comparison), without consideration of disadvantages (e.g., nonobjectivity from a previ-ous non-clinical relationship or nonobjectivityfrom a previous clinical relationship).

NP1 failed to prevent his own personal inter-ests from competing with those of his client. Byentering into risky multiple relationships withrole conflicts (3.06), he clearly compromised his

professional objectivity, competence, and effec-tiveness (3.05), and did not take reasonable stepsto avoid harm (3.04). By accepting this clienta second time for medicolegal evaluation, NP1expanded the ethical conflict resulting from


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multiple roles and interests. The following potential sources of bias existed: (a) a preexist-ing personal relationship that included havingreceived health care treatment services at this

persons office, and even by him, which could reasonably be expected to affect objectivity in aclinical evaluation of that person; (b) the preex-isting personal relationship that could reasonably

be expected to affect objectivity in a medicolegalevaluation; (c) the preexisting clinical treatmentrelationship that could reasonably be expected

to affect objectivity in a medicolegal evaluation;and (d) apparent financial interests which ini-tially, as a clinical assessment provider, seemed to compromise patient need for treatment, and later, as a highly paid expert, ignored precau-tions against possibility of nonobjectivity from

both previous personal and clinical relationships(the fact that the former most likely contributed tothe latter is also consistent with financial inter-ests that conflict with appropriate assessmentand treatment). NP1 failed to adequately con-sider and safeguard against potential conflictsand negative consequences of his decisions, and hence failed to take any precautions to avoid theharm that seems to have resulted. This harmincluded compromised objectivity and ineffec-tiveness in assessment, diagnosis and treatment

planning that complicated recovery and contributed to prolonged distress and disability.

AssessmentIn terms of NP1s initial assessment, numerous

problems are evident. Inadequate checklist ver-sus objective measures of emotional status and

pain were employed. No measures of emotionalstatus or pain complaint veracity were adminis-tered, and on the one measure of cognitive symp-tom exaggeration employed, a borderline scorewas produced but minimized and attributed to

pain and emotional distress. These problems breach requirements in Standard 9.02 (Use of Assessments) regarding both failure to use appro-

priate techniques with demonstrated utility,

reliability and validity, and failure to indicateresulting limitations.

In terms of diagnostic opinions, the require-ment in Standard 9.01 that opinions be based onsufficient information and techniques to sub-stantiate findings was not met. Not only wereinsufficient measures employed, but there wasthen no consideration that pain, emotional statusor motivation may have influenced neuropsycho-logical test performance (e.g., Hart, Martelli, &Zasler, 2000; Hart, Wade, & Martelli, 2003;

Martelli, Zasler, Nicholson, & Hart, 2001; Nicholson, 2000). The inconsistency in inter- preting pain and distress as causes of a suspi-cious score on a very easy symptom validitytest, yet not considering that they could affect

performance on much harder neuropsychologi-cal measures is glaring evidence of bias. Further,

pain and distress were not even considered as possible barriers to adjustment that required prompt and aggressive treatment. The failureto recommend prompt treatment to someone

presumed to be in acute emotional distress and pain violates the primary bioethical principle of beneficence and nonmaleficence (APA, 2002;Beauchamp & Childress, 2001; Martelli, Zasler, &Johnson-Green, 2001).

Case Resolution

After learning that NP1 had become re-involved as an expert with his former health care provider and then clinical patient, NP3 called NP1 toexpress concerns about apparent conflicts of interest and multiple relationships. With regard to accepting the subject as a clinical patient, heminimized how well he knew the subject and explained his rationale. He noted that he had consulted a colleague (a clinical psychologist/

psychotherapist) who agreed that neuropsychol-ogy was objective, that having a pre-injury base-line of cognitive and personality functioningwas a unique advantage, and that avoiding psy-chotherapy would avoid a conflict. Regarding


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re-involvement for medicolegal examination, NP1 explained that the subjects attorney requested a re-evaluation and that he was only performingclinical duties.

In a subsequently scheduled meeting, NP3delineated the ethical concerns. NP1 did notexpress complete agreement, and even ques-tioned whether NP3s opinions were conflicted

by his involvement as an expert from the other side of an adversarial court proceeding. NP1nevertheless noted the following: (a) He did not

fully critically consider, explicitly indicate, or explicitly make efforts to safeguard against poten-tial conflicts inherent in such an examination,invited questioning of his objectivity, and did not indicate the potential conflicts or limitationsin his reports; he admitted that if another neuro-

psychologist had conducted an evaluation under similar circumstances, he probably would have

been suspicious; (b) this was the first evaluationof someone with whom he had a pre-existingrelationship, and he would not perform a similar evaluation in the future, and he would be onguard more generally to issues relating to con-flicted interests; (c) neuropsychologists are notalways objective, and certain situations requiregreater scrutiny e.g., he periodically uses theSweet and Moulthrop (1999) self-examinationquestions, and these could have been used in thissituation and perhaps should be used more fre-quently; and, (d) he would request a withdrawalfrom testifying in the legal case.

NP1 subsequently reported that a discussion between his business attorney and the retaining plaintiffs attorney determined that he would risk legal action if he withdrew from expected involve-ment in the plaintiffs case. Problem-solvingdiscussions between NP1 and NP3 were planned.Prior to further discussion, a settlement wasreached, obviating the need for decisions about

NP1s continued involvement in the plaintiffslegal case.

Overattribution of post-injury problems to brain injury despite weak evidence reduced the credibility of the patients complaints and

misdirected treatment. Further, not recommend-ing psychotherapy or pain management earlyafter injury diluted recognition of the importanceof these problems, delayed treatment and almostcertainly protracted distress, complicated recov-ery, and prolonged disability. The small settle-ment that was awarded hardly seemed desirablecompensation for the apparently harmful initialassessment and treatment of this patient thatlikely would not have happened absent the multi-

ple conflicting relationship influences.

Conclusions and Recommendations

In the present scenario, the neuropsychologistemployed poor judgment by entering into multi-

ple relationships with multiple contradictory professional, personal and f inancial influences.He did not make reasonable efforts to consider the potential negative effects on his objectivityand effectiveness or the potential harm to the

patient. He performed an inadequate assessmentthat very poorly assessed and poorly addressed the role of pain and emotional distress factors,as well as motivation, and overattributed prob-lems to brain injury. He failed to (a) indicateany of the many potential limitations or qualifyany opinions, (b) protect against compromisingobjectivity, (c) employ more reliable and valid instruments for pain and emotional assessmentstatus, (d) appropriately interpret instruments,and (e) protect against the harm that eventuated.

NP1s inadequate assessment and treatmentrecommendations delayed appropriate treatmentof pain and emotional distress symptoms, compli-cated recovery, and almost certainly protracted distress and disability. Whether by coincidenceor subtle reinforcement, his initial involvementincreased the likelihood of his seeing this patientlater for lucrative work in his preferred specialtyof forensic neuropsychology.

It should be considered an extremely diffi-cult and underappreciated challenge to resist thehighly reinforcing incentives associated with


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lucrative medicolegal work in an otherwiseincreasingly restrictive reimbursement environ-ment. Although these incentives often exert anovert influence, it may be the more subtle and less conspicuous reinforcement that is the moredangerous threat, and there is increasing evi-dence that bias is as prevalent in forensic exam-iners as is it is in personal injury claimants (e.g.,Martelli, Zasler, Nicholson, Hart, & Heilbronner,2001).

The changes to APA Ethics Code help address

the problem of inappropriate examinations bytightening standards in the areas of competence,validity and objectivity, consideration and indi-cation of limitations, attention to individual fac-tors, protections against harm, promotion of moreequitability and justice, and transparency (Adams,2003). Clearly, more attention is needed in order to parallel the increasing prominence of forensicneuropsychology specialists and services, par-ticularly given the high frequency of pain com-

plaints by personal injury litigants and thoseseeking disability benefits. It may be incumbentupon neuropsychologists to seek out additionalreadings that provide strategies for protectingagainst these potent yet often subtle threats toobjectivity (e.g., Martelli, Bush, & Zasler, 2003;Sweet & Moulthrop, 1999).

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principles of psychologists and code of conduct. American Psychologist, 47 , 1597-1611.

American Psychological Association (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57 (12) , 10601073.

Beauchamp, T.L., & Childress, J.F. (2001). Principlesof biomedical ethics (5th ed.). New York: Oxford University Press.

Bruns, D., Disorbio, J.M., & Hanks, R. (2003). Chronicnonmalignant pain and violent behavior. Current

Pain and Headache Reports, 7 , 127-132.Hart, R.P, Martelli, M.F., & Zasler, N.D. (2000).

Chronic pain and neuropsychological function-ing. Neuropsychology Review, 10 (3) , 131-149.

Hart, R.P., Wade, J.B., & Martelli, M.F. (2003).Cognitive impairment in patients with chronic

pain: The significance of stress. Current Pain and Headache Reports, 7 , 116-126.

Martelli, M.F., Bush, S.S., & Zasler, N.D. (2003).

Identifying and avoiding ethical misconduct inmedicolegal contexts. International Journal of

Forensic Psychology, 1 , 1-17.Martelli, M.F., & Zasler, N.D. (2001). Promoting

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