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September 04, 2014 Articles

Three's a Crowd: The Impact of Third-Party Observers on Neuropsychological Exams

By Matthew R. Shindell, Robert J. McCaffrey, and Graham M. Silk-Eglit

Attorneys frequently request to observe or record neuropsychological examinations of their clients or other parties in litigation. Admission of a third party to the neuropsychological evaluation, however, raises several problems—all of which can significantly affect how, or whether, such an exam holds up in court. A wealth of research shows that third-party observation can affect the performance of examinees on an array of cognitive and motor tasks that are typically administered during neuropsychological examinations. Moreover, admission of third-party observers may violate ethical guidelines governing clinical and forensic neuropsychological practice. While federal courts generally prohibit third-party observers from being present during psychiatric, psychological, and neuropsychological evaluations, state courts have established differing rules regarding their permissibility.

This article examines research on the effect of third-party observers on task performance, outlines the ethical issues third-party observation presents to neuropsychologists, and discusses state court rulings on the presence of third-party observers in psychological, neuropsychological, and independent medical exams.

Social Facilitation
Research on the impact of observation on task performance has an extensive history in psychology. The first study on this topic dates back to 1898, when Triplett observed that bicyclists rode faster when racing in a group than when alone. N. Triplett, "The Dynamogenic Factors in Pacemaking and Competition," 9  Am. J. Psychol. 507–33 (July 1, 1898). Shortly thereafter, in 1920, Allport coined the term social facilitation to refer to the influence that the presence of another person has on an individual's performance. F.H. Allport, "The Influence of the Group upon Association and Thought," 3 J. Experimental Psychol. 159–82 (1920). Subsequent research has found that the presence of observers can have not only beneficial impacts, but also adverse effects, on performance. For instance, an early study found that college students took longer to learn a list of nonsense syllables when an audience was present than when they were alone. J. Pessin, "The Comparative Effects of Social and Mechanical Stimulation on Memorizing," 45 Am. J. Psychol. 263–70 (1933). Later, Zajonc argued that these disparate findings could be synthesized by focusing on the nature of the task being completed. Whereas the presence of others leads to improvements on simple or well-learned tasks, task performance worsens in the presence of others on complex or poorly learned tasks. R.B. Zajonc, "Social Facilitation," 149 Sci. 269–74 (1965). More recently, social facilitation effects have been documented to occur in a wide range of neuropsychological domains, including immediate memory, delayed memory, executive functions, intellectual/academic achievement, motor, language, comprehension, attention/processing speed, visual tracking, visual perception/construction, and effort. These empirical findings attest to the robustness of social facilitation effects.

A recently published meta-analysis examines the effect of social facilitation on cognitive and motor tasks. A.D. Eastvold, H.G. Belanger & R.D. Vanderploeg, "Does a Third Party Observer Affect Neuropsychological Test Performance? It Depends," 26 Clinical Neuropsychologist 520–41 (2012). This meta-analysis synthesized the findings of 62 studies published between 1924 and 2009 and examined performance differences between observed and alone conditions in six domains: intellectual/academic achievement, attention/processing speed, executive functions, learning/immediate memory, delayed recall, and motor. Analyses revealed that third-party observation has a large adverse effect on delayed recall tasks, a small adverse effect on learning/memory and attention/processing speed, and a small beneficial effect on intellectual/academic tasks. Third-party observation did not appear to have an effect on executive function or motor tasks. These last results must be interpreted with caution, however, as these domains are composed of several different types of tasks, and the degree of effect may vary substantially across them. For instance, within the domain of executive functions, seven of eight tasks showed decrements in performance from third-party observation. Averaging across these eight tasks to calculate an overall third-party observation effect on executive function thus obscures sizable effects at the individual-task level. Thus, third-party observation substantially impacts performance on delayed recall, learning/memory, attention/processing speed, and intellectual/academic abilities tests, and may also impact tests that measure motor and executive function abilities.

An abundance of research has highlighted factors that may affect the magnitude of social facilitation effects. Notably, research has shown that the physical presence of an observer is not necessary for social facilitation. Several empirical studies have documented social facilitation effects when observation was made behind a one-way mirror, on closed-circuit television, by video recording, or by audio recording. Instead, the essential feature necessary to elicit social facilitation appears to be the individual's belief that he or she is being observed.

Ethical Guidelines Governing Clinical Neuropsychological Practice
Admission of third-party observers to a neuropsychological evaluation raises several ethical issues for the evaluating neuropsychologist. Any expert psychologist, including any clinical neuropsychologist, must recognize as authoritative three guidelines for practice if the expert is to practice at or above the standard of care: (1) Ethical Principles of Psychologists and Code of Conduct, (2) Specialty Guidelines for Forensic Psychologists, and (3) Standards for Educational and Psychological Testing. In addition, experts must acknowledge the administration guidelines outlined in test manuals (e.g., Wechsler Intellectual Scales) as authoritative when conducting an evaluation. These sources contain several important considerations on the status of third-party observation during neuropsychological evaluations.

Standardized Administration
One ethical issue stemming from these sources centers on standardized test administration. Standardized test administration involves adherence to detailed procedures for giving directions to examinees, administering tests in specific settings, and scoring test data. According to the Standards for Educational and Psychological Testing (henceforth referred to as the Standards), every test manual must describe the standardization sample and the standardized procedures in which the test was administered to this sample. Moreover, the Standards maintain that "test users should follow carefully the standardized procedures for administration and scoring specified by the test developer, unless the situation or a test taker's disability dictates that an exception should be made." If changes are made to administration procedures, the reliability and validity of test data on which neuropsychologists rely when providing expert testimony may be compromised. To date, no test manual has included the presence of a third-party observer as part of standardized administration procedures. Because third-party observation leads to social facilitation effects that impact test results in both known and unknown ways, third-party presence is likely to vitiate the reliability and validity of test data and be inconsistent with the guidelines outlined in the Standards.

It is the responsibility of the clinical neuropsychologist to educate all parties regarding the negative impact of third-party observers. This is usually sufficient for opposing counsel to withdraw the request. If the examination must proceed with a third-party observer, then the examiner should include in his or her report a section that details the efforts to preclude the third-party observer, a section on the behavioral observations of the third-party observer, and discussion of the negative impact caused by the third-party observer, as well as educating the trier of fact through testimony. It would be good practice for the clinical neuropsychologist to routinely incorporate in all reports an acknowledgment of the presence or absence of a third-party observer, as this would help educate the legal profession to this important issue.

Applicability of Normative Data
A related issue is the applicability of normative data when standardized administration procedures are not followed. Normative data are data gathered from a large sample of relevant individuals (e.g., college-age students) on a particular test. Neuropsychologists use normative data to compare how an examinee's performance on a test compares with this larger sample. Normative data for neuropsychological tests are gathered under highly controlled circumstances that do not include the presence of third-party observers. Admission of a third-party observer to the testing situation thus introduces a variable that was not present in the context in which normative data were collected. Because third-party observers are likely to affect the results of testing via social facilitation, comparing data collected in the presence of a third-party observer to normative data might lead to invalid conclusions. In recognition of this problem, several recent test manuals have explicitly addressed the issue of third-party observers (e.g., the WAIS-III and WMS-III Technical Manuals), and the National Academy of Neuropsychology has published a position paper advocating the exclusion of observers from neuropsychological exams.

Test Security
The presence of third-party observers during neuropsychological evaluations also threatens the security of neuropsychological tests and increases the potential for public access to test items. Most neuropsychological tests depend on the unfamiliarity of test items to test takers, as tests are normed on test takers who are unfamiliar with test items. For that reason, similar conditions of unfamiliarity are a prerequisite for validly comparing test data with these norms. When a third-party observer is present during an evaluation, the evaluating neuropsychologist does not have control over what the third-party observer does with the information about the neuropsychological tests that he or she observes. While the Standards and the American Psychological Association Ethical Guidelines and Code of Conduct stipulate that psychologists have a responsibility to ensure the security of tests, non-psychologists are held to no such similar standard. Non-psychologists may thus release information about tests without clear repercussions, and thus increase the number of individuals who are familiar with test items.

Breaches of test security to third-party observers may also lead to coaching of examinees. Coaching refers to any process of providing information to examinees that may enable them to alter their presentation to appear a certain way. Of particular concern is the possibility that third-party observers, especially lawyers, may coach litigants on how to perform or not perform on specific tests. There are conflicting opinions within the legal community regarding the propriety of coaching clients on psychological tests. In a survey examining 150 law students' and 72 practicing attorneys' opinions on coaching clients on psychological tests, researchers found that 22 percent of students and 42 percent of practicing attorneys believed that they should provide as much specific information as possible about psychological testing. M. Wetter & S.K. Corrigan, "Providing Information to Clients about Psychological Tests: A Survey of Attorneys' and Law Students' Attitudes," 26 Prof. Psychol.: Res. &Prac. 474–77 (1995).

Coaching is especially problematic because it can help examinees feign impairments on neuropsychological tests while eluding being detected as putting forth an invalid performance. An invalid performance is characterized by performance on neuropsychological tests that does not validly reflect an examinee's true level of ability. Performance invalidity may reflect insufficient effort by an examinee or an attempt to exaggerate or feign cognitive impairments, among other factors, and it reduces, if not eliminates, the ability of test scores to accurately represent brain-behavior relationships. With regard to coaching, a 1995 study found that coached malingerers were able to improve their scores on the Portland Digit Recognition Test, a popular measure of performance invalidity, relative to un-coached malingerers. F.E. Rose, S. Hall & A.D. Szalda-Petree, "Portland Digit Recognition Test—Computerized: Measuring Response Latency Improves the Detection of Malingering," 9 Clinical Neuropsychologist 124–34 (1995). Another study documented a real-life case of an examinee who was coached by his lawyer and was consequently able to improve his performance on the Portland Digit Recognition Test and thus evade detection as performance invalid. J.R. Youngjohn, "Confirmed Attorney Coaching Prior to Neuropsychological Evaluation," 2 Assessment 279–83 (1995).

State Rulings on Third-Party Observers
Each state has its own rules of civil procedure concerning how a mental examination is performed and when it is permissible. While most state rules stem from Federal Rule of Civil Procedure 35(a), the question of whether a party can have an observer present during such an examination is unsettled throughout the country. Nonetheless, there appears to be three general approaches to this issue.

First, some courts have ruled there is an absolute right to have an observer present during a Rule 35 examination because it is a continuation of the adversarial process. Some notable decisions that conform to this approach are Langfeldt-Haaland v. Saupe Enterprises, Inc., 768 P.2d 1144 (Alaska 1989); Bartell v. McCarrick, 498 So. 2d. 1378 (Fla. Dist. Ct. App. 1986); Tietjen v. Department of Labor & Industries, 13 Wash. App. 86 (Wash. Ct. App. 1975); Gray v. Victory Memorial Hospital, 536 N.Y.S. 2d 679 (N.Y. Sup. Ct. 1989); Rotunda v. Petruska, 18 Pa. D. & C. 5th 422 (Pa. Commw. Ct. 2010); and Rochen v. Huang, 558 A.2d. 1108 (Del. Super. Ct. 1988) (holding that a medical examination can be recorded and a party may be accompanied by a health care provider of the party's choice). See also Acosta v. Tenneco Oil Co., 913 F.2d 205 (5th Cir. 1990).

Other courts have found there is no presumptive right to have an observer present at an examination. See McDaniel v. Toledo, Peoria & W. R.R. Co., 97 F.R.D. 525 (C.D. Ill. 1983); Dziwanoski v. Ocean Carriers Corp., 26 F.R.D. 595 (D. Md. 1960); Wheat v. Biesecker, 125 F.R.D. 479 (N.D. Ind. 1989).

The third line of decisions indicates the trial court may use its discretion on a case-by-case basis. See Robin v. Associated Indem. Co., 297 So. 2d 427 (La. 1973); Wood v. Chicago, Milwaukee, St. Paul & Pac. Ry. Co., 353 N.W.2d 195 (Minn. Ct. App. 1984); Whanger v. Am. Family Mut. Ins. Co., 58 Wis. 2d 461 (Wis. 1973).

While the federal rule generally prohibits the presence of an attorney at such an examination, state statutes and courts have different views on this issue. In California, a party compelled to submit to a physical examination is entitled to have an attorney present. Moreover, either party is entitled to request the presence of a court reporter. However, the party has no right to his or her attorney's presence for a psychiatric examination. Florida, New York, Pennsylvania, Texas, and Washington permit an attorney to attend a physical or psychiatric medical examination. In Montana, an attorney may be present when a physician takes his or her client's medical history but not during the physical examination. In Oregon and Washington, it is the plaintiff's burden to show good cause, which justifies an attorney's presence. Connecticut, Kansas, Kentucky, and the District of Columbia have prohibited the presence of counsel at this examination.

There are also different decisions concerning the presence of a plaintiff's treating physician or mental health practitioner. Courts in Florida and Maryland approve the presence of such an individual. However, their presence is prohibited in West Virginia.

With regard to an audio or video recording of a mental examination, Alaska permits it unless there is an overriding reason to the contrary. See Langfeldt-Haaland, 768 P.2d at 1147. In B.D. v. Carley, 704 A.2d. 979 (N.J. App. Div. 1998), a New Jersey court allowed the examination to be recorded. Wisconsin and New York have also permitted such a recording.

The presence of third parties at neuropsychological examinations is a complex and controversial issue because of the potential impact on the examinee's participation or the validity of the data collected, the ethical implications it raises for the examiner, and the varying rulings on the reliability and admissibility of exam results and testimony. Understanding the scientific research behind social facilitation, along with how particular jurisdictions have ruled on this topic, can prove critical for the trial lawyer when the mental condition of a party to litigation stands as a crucial factor to success or defeat.

Keywords: litigation, trial practice, neuropsychological exam, third-party observer, social facilitation, test validity

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