MOTION TO COMPEL THE RELEASE OF RAW DATA AND TEST BOOKLETS
NOTE: This document has not been updated and all articles cited need to be verified independently and all caselaw cited verified to make sure the caselaw is appropriate and has not been overturned or limited.
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COMES NOW the Plaintiff, by and through his/her undersigned attorneys, and moves this Court for the following:
1. Production of all raw data, testing material, handwritten notes and actual tests utilized in reaching any conclusion with reference to this case.
2. Production of test booklets at the defense doctors deposition.
To require that all the tests administered by the defense Neuropsychologist be provided only to the plaintiff’s Neuropsychologist would presume erroneously that a plaintiff’s Neuropsychologist actually owned all of the tests administered by the defense Neuropsychologist. There are hundreds of neuropsychological tests and psychological batteries available and various versions of these tests. For example, the Wechsler Adult Intelligence Test exists in it’s original form, a second version, the WAIS, R and a third version, the WAIS, III.
Furthermore, the defense argument that these tests cannot be disseminated because it result in individuals learning how to “beat the test” must consider the fact that these are already available for purchase and, in fact, as indicated in Are Psychologist Hiding Evidence? A need for Reform, Claims magazine, by Dr. Paul Lees-Haley, PhD, he states: (page 2 of article) he makes it clear that anyone can go to the Library of Congress and obtain these tests. “Moreover, numerous copies of copyrighted tests and test manuals are sent to the Library of Congress. There, they are available to any library patron who asks, and accessible to residents of other areas through inter-library loan services, consultants and professional research services. The contents of many of the most widely used tests are available to the public in texts that can be purchased through public bookstores or borrowed from libraries.
“There are 567 questions in the MMPI-2, a common psychological personality inventory and multiple cross-referencing scales. This is only one of many tests administered by the DME. The DME failed to explain in any degree of specificity just exactly how someone could beat the test or be “coached”. The defense certainly could have produced this information, had it existed, in camera and thus protected the test publishers. However, the defense did not and the undersigned would put forth the proposition that the defense did not because the defense could not.
Furthermore, if the parties agree not to disseminate the tests material outside the four corners of this law suit, then that concern is moot.
Dr. Lees Haley indicates that the following individuals also have access to tests and test data: (page 5 of his article)
teachers' aides
principals and assistant principals
special education teachers
speech pathologists
physical therapists
managers
executives
supervisors
training and development specialists
personnel managers
human resources managers
industrial psychologists
licensed and unlicensed school psychologists
licensed and unlicensed educational psychologists
guidance counselors
vocational experts
rehabilitation consultants
clerical and administrative personnel at all levels
licensed and unlicensed counseling psychologists and school counselors
research scientists
court reporters
attorneys
Therefore, this material is already available to individuals other than the doctor and it is important this court determine whether or not:
A. The tests the doctor claims he gave were actually given.
B. The test was scored correctly.
C. The tests actually tests for those issues which the doctor testifies that it does.
D. The patient actually answered the questions (i.e. is the handwriting actually the patients?
The defense’s position is akin to permitting the DME to have an ex parte deposition of a brain damaged plaintiff with no court reporter to protect for accuracy. The defense admits that the patient gets to see the raw data. The patient has the raw test data (i.e. test questions) given to him and used against him in this case but the defense seeks to preclude the patient’s own attorney from seeing the very items that serve as the basis for the defense in this case. The psychometrician who may not have any college education whatsoever, gets to see the raw data. The secretary typing up the report and copying pages for the file gets to see the raw data. The only person prevented from seeing the raw data is the person who needs it the most. The patient’s attorney.
Defense claims that providing the data to the plaintiff’s expert psychologist will comport with the law and should address the plaintiff’s concerns. It does not because of the following:
A. The doctor does not know or remember if the patient actually answered the questions as set forth in the raw data because the plaintiff’s treating doctor was not present when the DME examined the patient.
B. The lawyer cannot familiarize himself with the actual answers given by the plaintiff nor can he ask the plaintiff why certain questions were answered in a certain fashion so as to explain the results.
C. The defense position requires the plaintiff, ultimately responsible for the cost of this law suit, to pay an expert hundreds of dollars per hour (his own psychologist) to go through this information when the plaintiff’s lawyer is paid on a contingency basis and it, therefore, does not cost the plaintiff additionally for his or her lawyer to go through the material.
D. Even if the plaintiff’s treating psychologist has access to the raw data, he or she will not know the forensic significance of same. For example, the DME may claim he conducted a very thorough examination and his report reflects all significant findings. However, the plaintiff’s lawyer may find that a question answered on the MMPI2 reveals the patient endorsed suicidal items. Claiming to write a thorough report and leaving out the fact that the patient was actively suicidal has great forensic meaning that would be missed by a non-lawyer.
E. The defense’s position assumes the treating psychologist already has the tests and test questions given by the DME. This is frequently a fallacious assumption because there are hundreds of potential psychological tests and multiple versions. Without producing the tests and test questions, it thus requires the plaintiff’s treating doctor to go out and buy the test and test questions and such costs are ultimately passed on to the plaintiff in this law suit.
F. The lawyer cannot have a confidential conversation with his client about the reasons he or she answered items in a certain manner because the only way to find out the raw data is to include a third party, the plaintiff’s psychologist, which then eliminates attorney client privileged communications. The defense would have the opportunity to cross-examine the psychologist about the conversations between the plaintiff and his attorney in the presence of the doctor.
G. The attorney could hire a psychologist and have the very same tests administered to the lawyer and thus see the actual questions at great and unnecessary expense. Therefore, the argument that the lawyer cannot see the items is illogical. The lawyer can see the items. He just has to undergo an expensive and irrelevant psychological examination and thus he will have seen each and every item. T
H. he problem is that the lawyer has no framework with which to place the items. Ie why did my client answer true to question 32 of the MMPI2? The lawyer needs this information to be able to not only examine the DME about the test but explain to the jury why the client, for example, might have an elevation in the hypochondrias scale that actually reflects legitimate organic pathology. If a scale gives points towards being a hypochondriac when the plaintiff admits to symptoms consistent with that disorder, hoping the plaintiff’s expert will be able to explain this in vague terms to the jury is not sufficient. Furthermore, the treating psychologist may not have the medical reports which outline those very symptoms that will be in the hands of the plaintiff’s lawyer.
I. The jury needs to hear the items that give rise to elevations in certain scales to weigh the legitimacy of the conclusion. For example, if the doctor claims the plaintiff is malingering based on the Fake Bad Scale, the jury has the right to understand the scale and the plaintiff’s lawyer has the right and must be able to explain to the jury that each item endorsed by the plaintiff, such as headaches, stomach problems, can be explained by a brain injury and narcotics causing gastric upset. Failure to permit the plaintiff’s lawyer to do so removes his ability to prosecute the case and places him in the position of hoping the jury will simply believe his expert over the defense expert without giving the jury the actual facts upon which to draw the conclusions themselves.
Defense expert will admit he has in many cases in the past been required to release raw data pursuant to court order. In fact, many judges in this state have required same. The undersigned will agree to shred all raw data at the conclusion of the trial so as to assuage the concerns of defense that the material make its way in the public domain. Most importantly, §90.705(2) of the Florida Evidence Code entitled "Disclosure of Facts or Data Underlying Expert Opinion" states in relevant part:
Prior to the witness giving the opinion, a party whom the opinion or inference is offered may conduct a voir dire examination of the witness directed to the underlying facts or data for the witness's opinion. If the party establishes prima facia evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.
In order for the plaintiff to determine whether the underlying facts or data are sufficient for the witness to give their opinion, the attorney must have the data, including what answers were given to the doctor by the plaintiff, whether the testes in questions were actually given and whether the hand written material completed by the plaintiff was actually completed.
The APA is not state or federal regulatory body, but simply a voluntary organization to which a psychologist may or may not choose to join. It has no regulatory or persuasive authority over this court or any other. Additionally, nowhere in the code does it prohibit a doctor from releasing test data upon court order.
Furthermore, in fact, the APA code of ethics has been revised in 2003 to become HIPAA compliant and requires release of some raw data upon a HIPAA compliant release from the patient.
Federal HIPAA law supercedes state law and even the Florida Administrative Code (now obsolete pursuant to HIPAA) does not preclude the doctor from releasing the raw data to the plaintiff. In fact, the Florida Administrative Code, 64B19-19.005 (3)(2). It specifically states that the raw data must be released Awhen the release of the material is otherwise required by law. Fla. Admin. Code 64B19-19.005 (2002).
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Pursuant to an attached Bulletin 98-001, Insurance Commissioner Bill Nelson confirmed that, in fact, HIPAA supercedes conflicting state law. All Insurance Companies Authorized to Write Life and Health Insurance in Fl. And All Health Maintenance Organizations: Non-complying Health Insurance Statues, Bulletin 98-001, Treasurer, available at http://www/fldfs.com/companies/Bulletins/98-001.htm (Jan. 7, 1998).
Therefore, if the Florida Administrative Code is to be argued as to somehow preclude release of the raw data, since both the APA Code of Ethics permit release of certain patient data and new federal guidelines (HIPAA), the federal guidelines would take precedence over any Florida Code anyway; the argument tendered by the defendants has no merit.
Rule 9.04 of the American Psychological Association Ethics Code 2002 states in relevant part:
(a) The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists' notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.11, Maintaining Test Security) (emphasis supplied).
A review of the APA Fact Sheet for Neuropsychologists reveals that the APA specifically states (page 3),
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“Under HIPAA regulations, patients generally now have access to their records, including neuropsychological reports, tests responses and raw data.” See: American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, Assessment: Release of Test Data, 9.04 (2002).
The defense is taking the position that it is correct, and in fact SUGGESTED that the defense expert be permitted to document responses and plaintiff’s behavior during an exam but refuse to permit the plaintiff herself in this case the same opportunity via a videographer. Many of the items on psychological tests can be, in essence, “Backdoor” interrogatories asking the plaintiff questions the answers which can be used against him or her.