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Received: 10 September 2015 / Accepted: 16 October 2015 / Published online: 31 October 2015
# Springer Science+Business Media New York 2015
Abstract The ever expanding role of a forensic neuropsychologist in civil litigation has rightfully led to a higher level
of expectation for this expert, in realms such as clinical and
courtroom knowledge, objectivity, and work product utility.
The onus is on forensic neuropsychologists to ensure that
these expectations are met. Recognizing that bias is inherent
in clinical and forensic work, it is imperative that in high
stakes situations such as forensic neuropsychological assessment, the evaluator is proactively conscientious in recognizing, and minimizing, the effects of these biases. This article
highlights 12, of many, common biases about which the prudent forensic neuropsychologist should always be mindful of,
during evaluation as well as the provision of deposition or trial
testimony. Role, cognitive, and practice biases are defined and
illustrated with examples. Specific suggestions are extracted
from both empirical literature and forensic experience on how
to recognize and mitigate these biases. The information
contained in this article is intended to provide sound and practical strategies that can be useful for forensic neuropsychological practitioners. Attorneys will also find the content useful
when working with such experts, including during deposition
and cross examination preparation.
Introduction
The field of forensic neuropsychology has proliferated for
more than two decades with continued growth expected in
the foreseeable future (Kaufmann, 2009; Kaufmann &
Greiffenstein, 2013). This time period has seen publication
of numerous edited books on this topic (Boone, 2013;
Heilbronner, 2008; Horton & Hartlage, 2010; Larrabee,
2005, 2012; McCaffrey, Williams, Fisher, & Laing, 2004;
Sweet, 1999; Young, Kopelman, & Gudjonsson, 2009).
Sweet, King, Malina, Bergman, and Simmons (2002) documented the Bprominence^ of forensic neuropsychology vis-vis an increasing number of peer-reviewed journal articles and
continuing education opportunities at national conferences on
this topic. Sweet, Meyer, Nelson, and Moberg (2011) reported
that approximately 72 % of surveyed neuropsychologists provide forensic evaluations and consultation services.
Greiffenstein and Kaufmann (2012) recently concluded
BGrowth in forensic consulting for neuropsychology is
outpacing every related brain-behavior expertise and the
growth is accelerating^ (p.14).
Neuropsychologists are increasingly retained or
subpoenaed to provide forensic and clinical opinions related
to diagnosis, prognosis, causality, and permanency regarding
individuals with a host of compensable conditions such as
traumatic brain injury, anesthesia/surgical accidents, carbon
monoxide poisoning/toxic exposure, and post-traumatic stress
disorder (Richards & Tussey, 2013). Similar to expert witnesses in any field, the forensic neuropsychologist must strive
to be objective and unbiased to maximize effectiveness and
credibility. Triers of fact (i.e., judge, jury, and arbiter) will
likely discount or ignore the testimony of those experts who
are perceived as biased, advocates for one side or the other, or
have their own personal, financial, or political agenda to promote. Skilled attorneys will probe for bias during deposition
266
and seize every opportunity to expose the opposing neuropsychologists bias in trial which can prove pivotal in the eyes of
judge and/or jury and influential in judgment. In this Bage of
the internet,^ even a cursory online search reveals articles
such as BExposing An Expert Witness Bias During Cross
Examination: Collateral Attack^ in which Rubinowitz and
Torgan (2013) offer a step by step guide with specific questions to demonstrate bias and thereby discredit the expert witness. Quite simply, not only does the effective forensic neuropsychologist have to be imminently qualified regarding
education/experience and employ scientific and reliable methodology, he/she must take steps throughout the entire expert
witness process to maintain objectivity and impartiality.
Although each forensic case is different with unique expertexaminee dynamics and differing relationships with the
retaining attorney, there are frequently common threats to objectivity and sources of bias that the seasoned expert sees time
and again.
In this article, we discuss 12 different sources of bias that
the forensic neuropsychologist may encounter in his/her evaluation or provision of expert opinions and testimony. As evident in Appendix 1, the first four biases (role, financial,
referral source, and self-report) are logistical and administrative, pertaining to how the neuropsychologist has set up the
evaluation and the source of information relied upon. The next
two are statistical in nature (under-utilization of base rates and
ignoring normal variance in test scores). The final six biases
might best be described as a subgroup of cognitive, personal,
and attributional biases (confirmation, personal/political,
group attribution, diagnosis momentum, good old days, and
overconfidence). This list is certainly not exhaustive as other
sources of bias exist. Starting 60 years ago with the seminal
work of Meehl and Rosen (1955), researchers in the fields of
social and cognitive psychology as well as behavioral research
have identified, discussed, and studied social, attributional,
cognitive, and experimental biases including ways they might
affect the psychologists judgment and decision making process. However, a review of all these biases is beyond the scope
of this article, and instead, we focus on some that are frequently cited in the literature as potentially problematic and that are
topics of interest and study among neuropsychologists at national conferences and workshops. Although there may be
applicability to the criminal arena and with pediatric populations, the biases that follow are discussed primarily within the
context of personal injury civil litigation with an adult population. Other authors (Deidan & Bush, 2002; Martelli, Bush,
& Zasler, 2003) have identified a number of biases and ethical
issues in clinical neuropsychology and listed ways to address;
the present article builds on prior work in this area with a
greater emphasis on forensic practice. We hope that an exploration and review of these issues will promote future discussion and research and thereby improve the objectivity of those
neuropsychologists who choose to provide forensic services
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Financial/Payment Bias
Serving as an expert witness can be complex and stressful for
the neuropsychologist, and what should be the most straightforward component of this process (clear and ethical payment
arrangements) sometimes proves confusing or frankly unethical. We next review the continuum of reimbursement arrangements that vary from straightforward to murky to highly biased. First, it is commonly agreed that accepting a forensic
case based on any form of contingency payment arrangements
(payment of the experts fees is contingent on legal outcome)
is inappropriate with an inherent conflict of interest that
should be avoided (Binder et al., 2012; Bush, Connell, &
Denney, 2006). Such practices potentially bias the expert or,
at a minimum, contribute to the perception of bias. Second and
less straightforward than contingency financial arrangements
is a Blien^ that may also be termed a Bletter of protection^
(Woody, 2011). In this instance, the expert signs a lien agreement with the retaining attorney which Bprotects^ his/her balance due and seemingly promises payment for services
rendered when/if the case settles, regardless of the outcome
of the case. This presumably covers those instances in which
the patient does not have the finances, health insurance, or
other resources to cover the costs of neuropsychological services such as evaluation, treatment, and consultation.
However, what initially sounds like a creative way to help
someone who is indigent because of a compensable accident
or condition is fraught with ethical pitfalls as discussed by
Woody (2011) who ultimately discourages the psychologist
from engaging in this practice. The neuropsychologist who
accepts a lien as a potential source of payment has to answer
and defend the inevitable question of: BDoctor, isnt it true that
eventual payment of your final bill is 100 % dependent on the
outcome of this case?^ Personal injury cases frequently take
years to resolve, and there is no guarantee that the plaintiff will
recover anything let alone the full amount demanded or some
percentage thereof. Even the most principled neuropsychologist has to fight the reality or perception of bias that his/her
testimony is somehow shaded or adjusted to help insure a
successful judgment so that the statement for services rendered is paid in full. Anecdotally, some neuropsychologists
charge interest for past balances which places him or her in
the untenable position of somehow evaluating the probability
of eventually getting paid and then serving as a money lender
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Table 1
Retained expert
1. Who is client
The patient
Yes
No
Yes
Yes
No
No
Not Necessarily
No
Yes
Yes
No
Yes
Not necessarily
The patient
Yes
Retaining attorney; Court
the patient/plaintiff to a neuropsychologist, hoping an evaluation can be paid by health care insurance or a government
payer such as Medicare or Medicaid. However, most if not
all commercial insurance carriers and government health entities exclude forensic evaluations as they are not medically
necessary. One would certainly have to question the ethics and
potential bias of any neuropsychologist willing to disguise
charges for hours of record review and report writing as clinical rather than forensic.
opinions that are helpful for that side while hindering the
opposing sides case. Why would an expert who only accepts
plaintiff or defense cases, and especially those situations in
which one particular attorney or law firm accounts for all or
a majority of referrals, not become jaded over time and gradually conceptualize cases from that standpoint? If the expert is
employing a Bscientific method^ to forensic neuropsychology
as advocated by Larrabee (2012), that person should theoretically be equally conversant and willing to accept both defense
and plaintiff cases, assuming of course ethical payment and
other arrangements were in place.
Lees-Haley (1999) called a 5050 forensic referral pattern
an Bunfounded but widely circulated myth that testifying
50 % for plaintiff and 50 % defense is evidence of absence of
bias. This myth is a problem in the context of debiasing because it is used to imply lack of bias when 50-50 may actually be evidence of just the opposite. The 5050 myth is a
classic case of an unexamined proposition that survives by
repetition without critical review^ (p. 14). However, as one's
year's of forensic practice increase, it is difficult and perhaps
unrealistic for the neuropsychologist to maintain a true 5050
referral pattern, and we are not aware of studies addressing
bias (or lack thereof) with this phenomenon. It may be that the
referral ratio is not as important as a wide referral network,
and, therefore, we concur with Martinez (2014) who noted:
BDiversifying a forensic practice may reduce pressure to satisfy the referral source due to interest in future referrals^ (p. 2).
In summary, it may be common for neuropsychologists who
testify exclusively for one side or the other to get type-cast as
either a Bliberal plaintiff neuropsychologist^ or Bconservative
defense expert.^ However, rather than being concerned about
these labels, it is much more important for the forensic neuropsychologist to guard against automatically offering favorable
opinions for the side that hired them.
Somewhat more problematic than where a neuropsychologists forensic referrals come from are more subtle but potent
biasing factors that begin the moment the phone rings with an
attorney referral. At that time, the referring attorney may attempt to have the expert Bjoin the team^ with statements such
as BDoctor, I know you will do your own evaluation but Im
sure you will find that Mrs. Smith sustained a traumatic brain
injury (or did not).^ These types of statements begin a push to
affiliate with the referring attorney with subtle pressure to
accept their prevailing view. Attorneys by definition are zealous advocates and persuasive not only to judge, jury, and
client but their expert(s) as well. We encourage resisting attorney sweeping case conclusions before the neuropsychologist
reviews all the records and conducts his/her evaluation, setting
appropriate boundaries up front such as: BI appreciate that
information but Id like to be the judge of whether Mrs.
Smith sustained a brain injury after I complete my
evaluation.^ Information received at the onset of a case should
bring into consideration the long-studied psychological
269
principle of primacy bias or anchoring, that is, early information may lead to premature conclusions that are difficult to
abandon as the case unfolds. The simplest way to counter
potential bias in this area is to limit early attorney meetings.
The focus of the initial attorney-expert contact should primarily be administrative in nature to rule out potential
conflicts of interest, assure competency with the condition in question, and provide fees/policies and other
necessary documents (e.g., expert witness retention
agreement, CV, and disclosure of past testimony).
Post evaluation, attorneys will sometimes ask the neuropsychologist to make report changes that can vary from minor
factual mistakes (incorrectly reporting someone has three siblings when, in fact, it is two) to substantive (changing forensic
opinions about diagnosis or causation). The forensic neuropsychologist should never alter a report that has been finalized, even if it has only been sent to the referring attorney who
promises to shred it. Such requests have to be evaluated according to accuracy and can be accomplished in the form of an
addendum or supplemental report where there is a paper trail
of the neuropsychologists decision-making process with full
disclosure. Factual inaccuracies can and should be corrected;
however, requests for more substantive changes have to be
evaluated on a case by case basis. For instance, if additional
key records or facts become available after report completion
and that information changes forensic opinions, an addendum
is the appropriate forum to document using language such as
BAfter reviewing the following records on this date, my opinion of X changes to Y for the following reasons.^ Otherwise,
if the retaining attorney is requesting that an expert alter his/
her report with substantive changes in the absence of new facts
or simply to bolster their legal case, a firm but polite BNo^ is
recommended with explanation that the expert is not willing to
compromise his /her ethics and integrity. Setting this type of
ethical boundary up front communicates the experts unwavering conviction he/she cannot be manipulated or bullied
which often paves the way for a more productive working
relationship down the road.
Finally, after a judge or jury has delivered a verdict,
experts are sometimes tempted to call the retaining attorney to find out Bhow did we do^ with maybe a
specific question of Bhow much did the jury award the
plaintiff?^ This communicates an emotional investment
in the outcome that should be avoided. Some experts
may have need for being perceived as the Bstar witness^
in high profile cases or Bhitting a homerun^ with their
testimony which only communicates partisanship.
Moreover, if an expert is that intrigued by a jury verdict, he/she was likely biased from the start and may
have approached the forensic evaluation from the standpoint of winning vs. losing a case or defeating the opposing expert, factors inconsistent with the awareness
and mitigation of bias that we advocate in this article.
270
employment, academic areas, and Blife in general^ to be superior and more trouble free than the non-litigating controls.
Lees Haley et al. (1997) did not believe that malingering
could fully account for the significant differences and offered
social pressures, cognitive dissonance, and other possible explanatory factors. Somewhat related (and discussed in detail
in section 11 of this article) is the Bgood old days^ bias
(Iverson, Lange, Brooks, & Rennison, 2010) in which forensic examinees tend to over-report pre-incident accomplishments and abilities.
That neuropsychologists often evaluate individuals who
legitimately have no memory or have impaired recall of a
compensable traumatic event, such as the examinee with a
history of brain injury including a loss of consciousness and/
or post-traumatic amnesia in which no memories were stored,
also dictates the necessity of reviewing records surrounding
the incident in question. This is especially important when
trying to objectively establish acute injury parameters that
help grade TBI severity or the duration of loss of consciousness (LOC) for the victim of carbon monoxide poisoning. In
such instances, paramedics, first responders, and emergency
physicians who are trained to evaluate and document acute
injury characteristics such as Glasgow Coma Scale scores,
length of post traumatic amnesia, or carboxyhemoglobin
levels provide vital information that Bfill in the blank^ for
the time the examinee has no recall. Hospital or outpatient
provider records help trace an individuals recovery (or lack
thereof) and often contain neuroimaging reports, treatment
provided and outcome, and cognitive evaluation findings.
It is time saving for the forensic neuropsychologist to have
a checklist of these and all other recommended pre- and postincident records to give to the referral source up front and as a
cross check for the psychologist to ensure no primary source
of records is being over-looked. Many civil personal injury
cases can entail hundreds if not thousands of pages of records;
therefore, developing an organizational system in which records are indexed chronologically or according to provider or
specialty is recommended. However, relying exclusively on
the retaining attorney or claims adjuster to provide all or at
least key records in a case is presumptive as interested parties
sometimes Bcherry pick^ records that support their side, withholding key records harmful to their central premise
(Schatman & Thoman, 2014). The forensic neuropsychologist
should therefore insist that all pre- and post-incident records
be provided including, if necessary, going directly to the
source document (e.g., requesting a vital discharge summary
directly from the hospital). Awareness of a record with important implications that cannot be obtained should be noted in
the report to promote transparency.
Moreover, third party records can sometimes be misleading
and according to Cripe (2002) have significant limitations
including Blimited sampling; varied report writing styles;
indirect methods; narrow focus; subjective biased
271
correctly answered basic questions about sensitivity and specificity, only 8.6 % were able to correctly compute the positive
predictive value question when it was presented in a probability
format; however, accuracy improved to 63 % when presented
in a frequency format.
Base rates are important for the neuropsychologist to consider
in all conditions but especially important in the forensic evaluation of someone with known or suspected Mild Traumatic Brain
Injury (MTBI). For instance, the base rate of malingering in
plaintiffs with uncomplicated MTBI (negative neuro-imaging)
has been estimated as high as 40 % (Larrabee, 2003).
Moreover, it has been shown in this same population that the
base rate of cognitive symptoms beyond 12 months post-injury
is only approximately 5 % (Carroll et al., 2004; McCrea, 2008).
Thus, if a forensic neuropsychologist is evaluating a plaintiff
who sustained an uncomplicated MTBI 4 years ago but still
presents with numerous cognitive symptoms, it would be unwise
to not consider malingering and a host of other explanatory
factors in the differential diagnosis. That is, the chance of malingering could be as high as 40 % in this hypothetical scenario but
there would be a much higher probability of factors other than
MTBI as the cause of persistent cognitive problems (e.g., preexisting conditions and/or comorbid psychiatric or neurologic
factors would need to be ruled out).
Lees-Haley and Brown (1993) administered a 37-item
checklist to a large sample of personal injury claimants undergoing psychological evaluation for Bemotional distress.^
Subjects, specifically excluded if they had any history of
TBI, seizures, toxic exposure, or other Bneuropsychological
impairment^, were compared to a control group of family
practice patients who presented with routine problems of sore
throat, respiratory problems, headache, flu, and hypertension.
There was not an MTBI control group. The experimental
group (with no neurologic history) endorsed high numbers
of neuropsychological (concentration, memory, word finding,
and organization problems), psychological (anxiety, depression, and loss of interest), and physical (headache, back pain,
and fatigue) symptoms. There are two main conclusions from
these and other studies: First, MTBI symptoms are nonspecific and occur in high frequency in many clinical and
normal-control populations; it is therefore critical for the forensic neuropsychologist to be aware of this base rate data.
Second, relying extensively on MTBI or post-concussion
checklists or self report inventories likely places the neuropsychologist at risk of diagnostic error or faulty conclusions.
Paul Meehl famously pointed out that Bthe chief reason for
our ignorance of the base rates is nothing more subtle than our
failure to compute them^ (in Waller, Younce, Grove, & Faust,
2006. p. 234). Our field now has extensive guides of base rates
with both clinical neuropsychology and general populations.
McCaffrey et al. (2003) systematically documented symptom
base rates for a wide array of medical (HIV/Aids, stroke, and
dementia), psychiatric (learning disability, depression, and
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anxiety), and substance use/exposure (carbon monoxide, recreational drugs including marijuana, alcohol and cocaine, and
pesticides/solvents) conditions. In 2006, McCaffrey, Bauer,
OBryant, and Palav published Practitioners Guide to
Symptom Base Rates in the General Population. Knowing
the base rates of the condition and symptoms in question will
only increase the forensic practitioners diagnostic and predictive accuracy.
Confirmation Bias
Confirmation bias is a psychological phenomenon whereby
an individual preferentially favors information that supports
an original hypothesis and ignores or dismisses data that may
disconfirm the favored hypothesis (Mendel et al., 2011;
Nickerson, 1998). It is the process of seeking information
based on a desired outcome. This bias has been recognized
in philosophy and psychology for decades and was described
as early as 1620 by Francis Bacon (Nickerson, 1998). It is not
unique to medical professionals. In politics and debate, for
example, it is not uncommon for individuals to highlight facts
that are consistent with their positions while simultaneously
dismissing facts that may refute their position. In forensic
science, research has indicated that judging the similarity of
two handwriting samples is directly affected by confirmation
bias, and that confession of a crime can lead to collection of
evidence that fits the confession (Kukucka & Kassin, 2014).
Confirmatory information seeking is often not a conscious
process, but even awareness of confirmation bias does not
make one immune to it (Mendel et al., 2011; Nickerson,
1998). In addition to being aware of the bias itself, neuropsychologists must be continuously aware of their own decision
making processes (Gallagher, 2003). This section details ways
to mitigate confirmation bias at three critical points in the
neuropsychological evaluation: (1) the review of medical records, (2) the selection of questions and use of answers in the
clinical interview, and (3) interpretation of interview and testing data.
Medical records are commonly the first piece of evidence
that a neuropsychologist reviews in process of an evaluation.
Even before embarking on the record review, clinicians are
often able to formulate a hypothesis about the nature of an
injury or illness based on other presenting information. At that
point in the diagnostic process, it is helpful to establish two
competing hypotheses or at least remember the scientific
method of establishing both a hypothesis and its null. If only
one hypothesis is formulated, confirmation bias can arise out
of a tendency to seek information that confirms the one hypothesis (Nickerson, 1998). This may occur in part because of
a preference for reducing the possibility that the original hypothesis was wrong (i.e., Berror reduction^) as one proceeds
through the diagnostic process (Friedrich, 1993).
Confirmation bias occurs more frequently in settings where
hypotheses are considered sequentially as opposed to simultaneously (Jonas, Schultz-Hardt, Frey, & Thelen, 2001). In
addition, research on biased decision making indicates that
after a person commits to a single hypothesis, there is typically
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Diagnosis Momentum
Research has estimated that 75 % of clinician diagnostic failures can be attributed to cognitive error by the clinician, which
can stem from a variety of factors, such as insufficient knowledge, inadequate data obtainment and synthesizing, and/or
faulty data verification (Thammasitboon & Cutrer, 2013). In
addition to the cognitive errors described previously, diagnosis momentum bias is equally relevant and warrants consideration. This bias is defined as the tendency for an opinion or
working diagnosis to become almost certain as it is passed
from person to person, thereby suppressing further evaluation
(Croskerry, 2002). In other words, clinicians may prematurely
and/or inaccurately assign a diagnosis early, and then this
diagnosis gains momentum when subsequent clinicians accept the initial diagnosis, with no consideration of differential
diagnoses. Contributions from the field of cognitive psychology have led to this bias gaining increased attention in the
literature, largely in the medical and emergency department
settings, though with clear relevance for forensic neuropsychological practice.
It is essential that clinicians and forensic neuropsychologists are vigilant to diagnosis momentum bias as the foundations for this bias begins as soon as an individual is given a
diagnosis and is often an unconscious or unintended process
(Vick, Estrada, & Rodriguez, 2013). In an inpatient setting, for
instance, a patient may be labeled as Bdemented^ after
evidencing moderate difficulty on a Mini-mental State
Exam. If care is not taken, this label, applied presumably by
an inpatient treatment team and therefore carrying the weight
of a Bteam^ diagnosis, can follow a patient and have longlasting implications for treatment, even if further assessment
and diagnostic verification have not been attempted. This example illustrates the notion that diagnosis momentum bias is
an example of a systemic error, which in combination with
cognitive biases, can lead to diagnostic errors in all fields of
clinical practice.
The negative consequences of diagnosis momentum bias
extend into the forensic setting. For instance, in a recent legal
case in which one of the authors was involved, a seemingly
well-intended primary care physician (PCP) diagnosed MTBI
and made a number of referrals to other treatment providers
such as speech/cognitive therapy, psychiatry, and psychology.
Throughout the records, all of these clinicians used the same
diagnosis. Approximately 3 years later when this same PCP
was deposed and asked the basis of her diagnosis, she testified
that her patient was involved in a moderate speed automobile
accident and sustained a small laceration to his forehead.
Thus, she concluded, it would be reasonable to assume he
sustained an MTBI based on these and other factors. She
was next confronted with records documenting no loss or
alteration of consciousness, a GCS score of 15, and an affidavit from a witness who stated he had an accurate conversation
with the patient at the scene about a sporting event they had
each happened to watch on television the prior night. The PCP
eventually conceded that she did not use any specific MTBI
diagnostic criteria and based the diagnosis exclusively on
what her patient told her. Similarly, when each treatment provider was asked how they arrived at the MTBI diagnosis, they
all testified that they simply used the referring physicians
diagnosis without independent verification. This example
again highlights the systemic and individual contributions that
can perpetuate this bias.
Diagnosis momentum can also have significant consequences when malingering is the diagnosis. In another recent
case, a forensic neuropsychologist hired by the defense was
evaluating a plaintiff who had been labeled malingering in
prior evaluations. The expert was vaguely aware of the specific indicia of malingering in the past and was also frequently
reminded of these by the retaining attorney. After closely
reviewing the prior reports from both medical and psychological experts, it became clear that malingering was only comprehensively evaluated in the first evaluation, and similar to
the aforementioned example, subsequent evaluators seemed
to concur with the diagnosis with minimal independent verification. Indeed, treatment records at a rehabilitation facility
cited one of the prior evaluations (not the first) in opining that
intervention was Bnot necessary due to the patients feigned
symptomatology.^ Although it is possible the plaintiff was
malingering across all evaluations, it is equally possible that
the pejorative nature of this label instantly cast doubt and bias
in subsequent evaluators. Diagnosis momentum in this example can lead to individuals not receiving treatment that is genuinely indicated and can have significant legal ramifications.
It is important to recognize that cognitive biases are inevitable and often occur without intention. Therefore, forensic
neuropsychologists must take proactive steps to mitigate the
risk of this bias. Understanding the nature of cognitive biases
and their prevalence is a recommended fundamental step to
decreasing risk. According to Kahneman (2003), a dualprocess model unifies many theories of decision-making and
can help provide insight into how clinicians think, reason, and
judge efficiently in the diagnostic process. Although it is outside the scope of this article to describe this theory in detail,
applying Kahnemans (2003) model, clinicians rely on two
modes of decision making, BSystem 1^ and BSystem 2.^
System 1 is comprised largely of non-analytical thinking and
is characterized as intuitive, tacit, and experiential and may be
comprised of pattern recognition. Thus, in a neuropsychological evaluation, once a combination of clinical features is recognized, System 1 mode is enacted and can result in a rapid
diagnosis. However, this method alone is vulnerable to errors
and bias. If the diagnostic pattern is not easily recognized, the
System 2 mode, or analytical thinking, is then activated. The
System 2 mode is described as slow, deliberate, conscious,
and effortful reasoning that is often effective but not as
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276
Overconfidence
Bias exists in spite of excellent training, professional successes, and desire to be bias free. Bias also is unaffected by
years of experience in practice and is therefore equally likely
to occur in experienced and early career psychologists (Grove,
Zald, Lebow, Snitz, & Nelson, 2000; Sladeczek, Dumont,
Martel, & Karagiannakis, 2006). The overconfidence bias as
it applies to neuropsychology is most related to the accuracy
or precision of ones diagnostic capabilities (Harvey, 1997).
This bias characterizes the neuropsychologist who is 100 %
certain that they know Bthe truth^, perhaps as a consequence
of the confirmatory bias or diagnosis momentum problems
that are described in other sections of this article. It can lead
to diagnostic errors because of an inability to consider competing hypotheses. Therefore, deliberate consideration of two
competing hypotheses is as essential in reducing overconfidence as it is in reducing confirmation bias. Other ways to
mitigate overconfidence involve requesting periodic peer reviews of forensic reports, and being aware of ones own limitations in training and experience, including a lack of continuing education in forensic neuropsychology.
Discussion
To be biased is to be human, and neuropsychologists are no
exception. But striving to reduce, manage, or otherwise control the impact of those biases on ones forensic services is an
essential obligation of neuropsychologists. The above list of
biases is not exhaustive (dozens more exist) nor mutually
exclusive. For instance, the Bgood old days bias^ is a type of
Bself report bias, and Bdiagnosis momentum bias^ is a form of
Bconfirmatory bias.^ Even non-forensic psychologists are
subject to myriad biases that effect their decision making
and judgment. Then, when an adversarial setting with high
stakes and heightened scrutiny is introduced in the forensic
arena, the potential for cognitive biases and diagnostic errors
only increases. In adversarial systems, two equally competent
neuropsychologists can and often do disagree, arguing for
instance that the opposing experts written report or methodology suggests confirmation, financial, or referral bias or represents overconfidence. Whereas the cross examination process provides certain checks on revealing bias, jurisdictional
ethics, and licensing boards rarely get involved except in cases
of egregious ethical violations; for instance, the forensic neuropsychologist who provides expert opinions to Bprove^ a
family members damages or facilitate their acquittal of an
alleged crime, or the expert who engages in an unethical contingency fee scheme with bonuses and incentives. Ultimately,
however, it is up to the individual professional to monitor
biases and take appropriate steps to reduce and eliminate
them.
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278
Appendix 1
12 Sources of Bias in Forensic Neuropsychology
1. Role bias: Conflating clinical and forensic roles
2. Financial/Payment bias
3. Referral source bias (and retaining attorney pressure)
4. Self report bias (Need for corroborative data)
5. Under-utilization of base rates
6. Ignoring normal variance in test scores
7. Confirmation bias
8. Personal and political bias
9. Group attribution error
10. Diagnosis momentum
11. Good old days bias
12. Overconfidence
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ResearchandPublications/PositionPapers/Position%20Statement%
20on%20Contingency%20fee.pdf
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