Brain mapping: Should this controversial evidence be excluded?

Alverson, J Bruce

I.

INTRODUCTION

Brain mapping (qEEG)1 is an evidentiary tool that is becoming increasingly attractive to plaintiffs' attorneys around the country because it presents a colored picture which purports to show exactly what areas of a person's brain have sustained injuries. Brain mapping is particularly popular in closed head injury cases in which plaintiffs have normal CT, MRI, and EEG studies, but yet show abnormal qEEG findings.

The first step toward producing this controversial evidence is to perform an electroencephalogram (EEG), a test used to measure electrical activity in the brain. A computer, as opposed to a trained medical professional, is then used to interpret the results of the EEG by comparing the specific results with a database of readings from supposedly "normal" brains. The results are then displayed as color drawings or "maps" depicting color-coded patterns of electrical activity in the brain. Blue coloring represents "normal" areas and red coloring indicates "abnormal" areas.

II.

REVIEW OF CURRENT LITERATURE ADDRESSING BRAIN MAPPING EVIDENCE

Numerous studies have been published on the subject of EEG brain mapping. Highlights of some of the most preeminent of those studies are discussed here.

A. American Academy of Neurology Position Paper

The Therapeutics and Technology Assessment Subcommittee of the American Academy of Neurology published a position statement in which it assessed EEG brain mapping.2 The subcommittee found that brain mapping is of limited usefulness in clinical neurology because the techniques used in brain mapping often vary substantially between laboratories, and any clinical usefulness found with one specific technique may not apply when using a different technique. Furthermore, "a substantial number of technical and clinical problems interfere with many simple clinical applications,"3 which could easily mislead interpretation.

For example, one of the principal criticisms from this committee, as well as from other critics of qEEG, is that traditional EEG artifacts can appear in unusual ways. Furthermore, new artifacts can be caused by the data processing and computer-processing techniques themselves - totally unrelated to the brain itself. An artifact is a piece of information that is irrelevant to the EEG. It is information that reflects non-genuine cerebral electrical activity. There are many different potential causes of artifacts, including the EEG machine itself, the electricity used, human movement, and drowsiness. The electrodes are so sensitive that blinking the eyes, sneezing, coughing, sweating, and wrinkling the forehead can cause an artifact to appear. Even a patient's medication may affect qEEG results.

In light of these problems, the subcommittee concluded that the sensitivity and specificity of brain mapping "fail[s] to substantiate a role for these tests in the clinical diagnostic evaluation of individual patients for possible tumors, multiple sclerosis, minor head trauma, dyslexia, attention deficit disorder, schizophrenia, depression, alcoholism or drug abuse."4 The subcommittee cautioned: "If EEG brain mapping is done in any of those settings and an abnormality is found, the abnormality may suggest an organic impairment, but it is nonspecific for the cause or type of pathology and it does not necessarily correspond to any patient symptom."5

The subcommittee went further and criticized the use of long-latency evoked potentials because there was insufficient information about evoked potential topographical mapping to assess its normal variance, normal limits, effects of medication and other relevant, technical and patient-related factors. In this regard, the subcommittee concluded that "long-latency evoked potential topographic brain mapping is still investigational."6

Finally, the subcommittee concluded that "any clinical use of brain mapping must be a direct extension of routine EEG testing."7 The tests must "be interpreted only by physicians with satisfactory skills, knowledge and experience with the relevant additional technical problems, artifacts, normal variants, and statistical issues encountered in EEG brain mapping."8

The Academy updated its position in a 1997 paper.9 This extensive study considered the usefulness of different variations of qEEGs in diagnosing certain conditions such as epilepsy, cerebrovascular disease, dementia and encephalopathies, and head injuries. The authors addressed various problems associated with qEEG and specifically noted that " . . . evidence of clinical usefulness or consistency of results are not considered sufficient for us to support its use in diagnosis of patients with post-concussion syndrome, or minor or moderate head injury.10 The authors also discussed the problems associated with the use of these tests in legal disputes, including the occurrence of false positive results, the subjective process of reviewing an EEG, the lack of objective safeguards, and the poor test-retest reproducibility. The authors conclude: "On the basis of clinical and scientific evidence, opinions of most experts and the technical and methodological shortcomings, QEEG is not recommended for use in civil or criminal judicial proceedings."11

B. Mark Nuwer, M.D.

Dr. Mark Nuwer, former President of the American EEG Society, served as head of the panel which drafted the American Academy of Neurology Position Statement. Dr. Nuwer is the Chief and Hospital Department Head of the Clinical Neurophysiology Laboratories at the UCLA Medical Center and Neuropsychiatric Institute and Hospital. In addition, he is the Chief of the Electroencephalography Laboratory at that facility. Dr. Nuwer published several articles on the subject of brain mapping.12

Dr. Nuwer drafted the American Academy of Neurology's position paper on brain mapping. That paper concludes that it is generally accepted in the relevant scientific community that qEEG is not appropriate for clinical diagnostic use among patients who have had minor head trauma. 13 Computer technology results in a process which is highly biased towards false positives. That is, the computer software is unable to differentiate between information (artifacts) which should or should not be included in the analysis. This results in findings of abnormalities in many cases which are not justified and are clinically incorrect. In addition, the American Academy of Neurology notes that the process of administering the qEEG still involves many significant technical problems which interfere with valid results. These problems have not been resolved, thus limiting any clinical use of the technology to investigational purposes. 14

Furthermore, a wide variety of disorders can all produce the same EEG changes; therefore, these results cannot be used to make specific clinical diagnoses.II Dr. Nuwer concludes that clinical use of quantitative EEG is appropriate only in the following circumstances: (I) for screening possible epileptic spikes or seizures in long-term EEG monitoring or ambulatory recording to facilitate subsequent expert visual EEG interpretation; (2) for continuous EEG monitoring by frequency tending to detect early acute intracranial complications in the operating room or intensive care unit and for possible epileptic seizures in high risk intensive care unit patients; (3) in the assessment of cerebrovascular disease; and (4) in the assessment of dementia or deterioration of mental capacity. Dr. Nuwer does not advocate the use of clinical qEEG to diagnose closed head injuries where objective tests such as an MRI and CT scan do not diagnose injury.16

C. Position of the American Psychiatric Association

The American Psychiatric Association study concluded that quantitative EEG has particular utility "for the detection of abnormalities in slow waves,"17 which are a feature of many organic brain syndromes. However, the ability of qEEG to assist "in the diagnosis of other disorders, such as schizophrenia or depression, is not yet established."18 The task force noted that clinical replications and the sharing of normative and patient data bases necessary for the advancement of this field had not occurred. Finally, the authors concluded that "[p]roper use of this technique requires extensive training in a center experienced in its use"19 and that the establishment of "[s]tandards for training and for using the technology in psychiatry [was] urgently needed."20

D. Charles M. Epstein, M.D.

Dr. Charles Epstein published a paper concluding that brain mapping is an experimental tool and should not be used to diagnose a closed head injury.21 He performed a study on the use of computerized EEG in the courtroom and found that there was a high frequency of serious errors, including mistakes in interpretation, recognition of artifacts, recognition of drowsiness and its implications, recognition of the effects of medications and replication of evoked potentials. He further criticized the high false-positive rate and the misleading use of the term "abnormal."22 Dr. Epstein noted that "[t]he high frequency of errors and diagnostic illogic fully substantiates the warnings issued by the American EEG Society, the American Academy of Neurology, the American Psychiatric Association, and others about the potential for misinterpretation and abuse of qEEG."23

E. Society of Nuclear Medicine Brain Imaging Council

The Society authored an article entitled "Ethical Clinical Practice of Functional Brain Imaging,"24 which discussed the need for specific guidelines regarding scan interpretation and reporting. The article recounts the many sources of error in interpreting the results of a brain mapping scan. These include: differences in patient behavioral conditions during the acquisition; processing and display variations; nonstandard definitions of normal and abnormal; the availability of scanner-specific or archived normative databases; nonuniform use of quantitative analyses in conjunction with descriptive readings; availability of few published standards defining the criteria for disease pattern identification; and lack of published determinations of sensitivity and specificity to enable scans to identify specific diseases and syndromes before their routine clinical use.25

The study concluded that the use of neuroimaging in forensic situations, including criminal, personal injury, product liability, medical malpractice, and other types of litigation, remained especially controversial because there were so few controlled experimental studies and no available sensitivity and specificity rates. Furthermore, no clear distinction could be made between "normal" versus "abnormal" results. Therefore, the Society produced guidelines for consistent interpretation and reporting of qEEG studies.26

F. Frank Hopkins Duffy, M.D.

The most well-known proponent of brain mapping is Frank Hopkins Duffy, M.D. He is often referred to as the "father" of qEEG. Dr. Duffy acknowledged that as the average neurologist attempted to determine the legitimacy of brain mapping, he was confronted with much unreliable information - including exaggerated claims by manufacturers and proponents and equally exaggerated criticisms by self-proclaimed experts.27

Nevertheless, Dr. Duffy is a firm proponent of brain mapping. While these tests "provide information that contributes to a diagnosis,"28 however, he admits that they should never be "diagnostic"29 in and of themselves.

Dr. Duffy believes that brain mapping provides much more clinical information than the simple EEG. Thus, the "technique is [clearly] of clinical value,"30 and "as issues are scientifically and clinically resolved the field will increase its productive contribution."31

G. American Medical EEG Association

In 1994, the American Medical EEG Association (AMEEGA) formed an ad hoc committee on qEEG.32 The committee acknowledged the diversity in the practice of clinical qEEG in analysis and competence. They estimated that there were approximately three hundred qEEG units engaged in clinical practice in North America.33

The committee recognized and discussed the principal criticisms of qEEG and then concluded that each of the criticisms had been adequately answered. For example, the committee found that the criticism regarding sensitivity to artifacts had been answered by the fact that techniques had developed to reduce it to manageable levels.34 They answered the criticism that "normal" subjects appeared abnormal when compared to control groups by stating that well constructed data bases within certain specifications would help solve this problem.35

The committee set forth minimal requirements for devices used in the practice of clinical EEG. The members concluded that, when used on proper equipment by physicians with appropriate training and certification, qEEG provided clinically relevant information that was additive to that obtained from standard EEG interpretation.36 The committee believed that data from quantitative analysis provided important information about underlying brain function, and that this information was of value to neurologists and psychiatrists. They further believed that qEEG could assist in defining some psychiatric and neurologic illnesses.37

The committee concluded that qEEG was not a substitute for conventional EEG or clinical competence, but was of clinical value when performed in concert with standard EEG and analyzed by clinicians with competency in qEEG.38 In March of 1995, the AMEEGA council voted that this article represented accurately the position of the organization regarding qEEG.39

H. Other Proponents of Brain Mapping

Some proponents of brain mapping believe that it highlights characteristics not obvious to the observer, by drawing attention to "important but inconspicuous features of a transient event."40 These authors do recognize, however, that these fine details may be irrelevant artifacts, as opposed to biologically meaningful data. Other proponents of brain mapping have argued that the fact that qEEG was awarded a billing code by the AMA (CPT code 95957) was significant. CPT codes are used for purposes of Medicare/Medicaid billing. In a letter from the AMA to physician Michael P. Krieger, M.D., the AMA stated that "inclusion of a descriptor and its associated specific five-digit identifying code number in CPT, is generally based upon the procedure being consistent with contemporary medical practice and being performed by many physicians in clinical practice in multiple locations."4'

III.

RELEVANT COURT DECISIONS

There has been only one reported case in which brain mapping evidence was allowed. This was the case of Williamson v. Haynes Best Western of Alexandria,42 which is discussed in detail below. However, the admissibility of this evidence was not in issue on appeal. The appeals court simply noted, in dicta, that evidence of brain mapping was admitted by the lower court. The remaining reported opinions have excluded this evidence.

A. Arizona

In State v. Zimmerman,43 the Arizona Court of Appeals determined that a trial court did not err when it excluded evidence of brain mapping. This case involved the appeal of a conviction for first degree murder where brain mapping evidence was deemed inadmissible by the trial court. The appeals court considered the American EEG Society's statement on the clinical use of qEEG and an article by Dr. Frank Duffy. The court determined that there was substantial evidence from which the trial court could conclude that qEEG was not generally accepted in the neurological community. It thus upheld the lower court's decision to exclude the evidence.

B. Louisiana

The Louisiana Court of Appeals decided the case of Williamson v. Haynes Best Western of Alexandria,44 in which a woman claimed she had been electrocuted. While the admissibility of brain mapping evidence again was not in issue on appeal, the appellate court did note that evidence of brain mapping had been admitted by the lower court.

C. Minnesota

The Minnesota Court of Appeals considered the issue of the admissibility of qEEG evidence in an unpublished opinion, Ross v. Schrantz.45 This case involved a claim of closed head injury suffered in an automobile accident. The primary evidence of the alleged injury was brain mapping. The trial court had granted a motion to exclude evidence of brain mapping under the Frye46 test, finding that there was no scientific literature to show that qEEG was reliable or generally accepted in clinical applications. The court specifically found that qEEG was not well recognized in clinical settings and was not a stand-alone diagnostic tool.

The Minnesota Court of Appeals considered the issue, noting first that exclusion of qEEG evidence under the Frye test was appropriate since there was ample support for the "conclusion that qEEG had not reached the point where the scientific community generally agree[d] that it provides a reliable, standalone diagnostic tool for clinical application."47 The court further found that the extant literature showed that "qEEG has primarily been used in research settings and in conjunction with the more accepted diagnostic tools."48

The court then went one step further and stated that qEEG evidence would not meet the standard for admissibility under a Daubert analysis.49 Under Daubert , a court must determine whether an expert will "testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue."50 The court determined that the second prong of Daubert could not be met, since qEEG was used "primarily as a research tool and not for clinical diagnosis."51 In point of fact, the court observed that qEEG was used in conjunction with other tests, rather than as a sole indicator, and was used "only successfully in areas other than closed head injuries."52

D. Nevada

Following suit, four Nevada trial courts have now decided that evidence of brain mapping is inadmissible.53 In Gambino v. Biaz,54 the court issued an order excluding all evidence of brain mapping. Defense expert Steven Glyman, M.D., a neurologist, testified that the main problem with brain mapping was that human beings were selecting which data to input into machines - i.e, humans are deciding which part of the EEG record to digitize. Therefore, the test could provide a variety of results depending on the nature of the information selectively provided.55

In Ewy v. Clark County Wholesale Inc.,56 the defendants successfully claimed that brain mapping was an experimental technique with substantial unreliability. Their motion in limine to exclude evidence of brain mapping and qEEG analysis was therefore granted.

Likewise, in Gootkind v. Chinander and Hertz Equipment Rental Corp.,57 the defendant sought to exclude evidence of colorized brain mapping and computerized topography. The defendant filed a motion in limine seeking to exclude this evidence and an evidentiary hearing was held during trial. The court granted the motion and excluded all evidence of colorized brain mapping.

Finally, in Adler v. Steensen,58 although ultimately not litigated, the issue of brain mapping was heavily contested by the parties. Dr. Harry S. Tamm, a board-certified psychiatrist and neurologist, testified that brain mapping test results were nonspecific and could be abnormal for any one of a variety of reasons.

E. 10th Circuit

The Tenth Circuit held that evidence of brain mapping was inadmissible in Head v. Lithonia Corp. Inc.59 This case involved a plaintiff who claimed she was injured at work when the reflector portion of a hanging light fixture fell and struck her on the side of the head. The plaintiff reported the incident three weeks later, complaining of headaches, dizziness and occasional blackouts. An EEG, clinical exam and CT scan were performed, and all revealed normal results; the only abnormal test result was provided by topographical brain mapping. The district court allowed the evidence, but the defendant appealed, alleging that the district court erred in allowing "plaintiff to introduce the test results . . . without requiring plaintiff to establish the necessary foundation for the reliability of the test."60

On appeal, the Tenth Circuit evaluated the trustworthiness of this test by considering whether brain mapping was reasonably relied on by experts in the field. Plaintiff's expert was unable to explain the methodology in the clinical setting and did not even know that the American Academy of Neurology had issued a position statement regarding brain mapping. The Court of Appeals thus determined that the district court had erred in admitting the evidence, stating that " . . . the record does not sufficiently establish the trustworthiness of topographical brain mapping or its acceptance in the relevant scientific community...."61

V.

CONCLUSION

Sound arguments exist that evidence of qEEG brain mapping should not be admissible under either the Frye or the Daubert standards for admissibility of reliable scientific evidence. The test itself is fraught with uncertainties. It is applied in different situations and under different testing conditions. The test results are often read by unqualified personnel, and there are no accepted standards within the neurology community to establish what constitutes a "normal" or "abnormal" result.

1Brain mapping is also referred to by the following terms: EEG Discriminant Analysis, quantitative EEG, quantitative electroencephalography (QEEG or qEEG), computerized EEG (CEEG), brain electrical activity mapping (BEAM), and quantified neurophysiology (qNP).

2 American Academy of Neurology, Assessment: EEG Brain Mapping, 39 NEUROLOGY 1100 (1989).

3 Id.

4 Id.

5 Id. 1101.

6 Id.

7 Id.

8 Id.

9American Academy of Neurology and American Clinical Neurophysiology Society, Assessment: Digital EEG, Quantitative EEG and EEG Brain Mapping, 49 NEUROLOGY 277 (1997).

'10 Id. at 283. "Id. at 284.

'2Marc R. Nuwer, M.D., Ph.D. and Harris M. Hauser, M.D., Erroneous Diagnosis Using EEG Discriminant Analysis, 44 NEUROLOGY 1998 (1994); Marc R. Nuwer, On the Controversies About Clinical Use of EEG Brain Mapping, 3 BRAIN TOPOGRAPHY 103 (1990); Marc R. Nuwer, M.D., Ph.D., Uses and Abuses of Brain Mapping, 46 ARCH. NEUROL. 1134 (1989). '3American Academy of Neurology, supra note 2, at 1100.

'4Id. at 1100, 1101.

"Nuwer and Harris, Erroneous Diagnosis Using EEG Discriminant Analysis, supra note 12, at 1998.

'6Assessment: Digital EEG, Quantitative EEG and EEG Bran Mapping; Report of the American Academy of Neurology and the American Clinical Neurophysiology Society. Approved but not yet published.

"American Psychiatric Association's Task Force on Quantitative Electro-Physiological Assessment, Quantitative Electroencephalography: A Report on the Present State of Computerized EEG Techniques, 148:7 AM. J. PSYCHIATRY 961 (1991). 18Id. '91d.

20 Id. at 963.

21 Charles M. Epstein, M.D., Computerized EEG in the Courtroom, 44 NEUROLOGY 1556 (1994).

22 Id. at 1568.

23 Id.

24 37:7J. NUCLEAR MED. 1256 (1996).

25 Id. at 1257.

26Id. at 1257-58.

27Frank H. Duffy, M.D., Clinical Value of Topographic Mapping and Quantified Neurophysiology, 46 ARCH. NEUROL. 1133 (1989).

28Id. at 1134.

29Id.

30Id.

32Frank H. Duffy, John R. Hughes Fernando Miranda, Peter Bernard and Patricia Cook, Status of Quantitive EEG (QEEG) in Clinical Practice, 1994, 25 CLINICAL ENCEPHALOGRAPHY No. 4, at VI (1994).

33Id. at VIII.

34Id. at XIII.

35Id. at XIV

36Id. at XVII.

37Id XVIII.

38Id.

39Editor's Notes, 26 CLINICAL ENCEPHALOGRAHY No. 3, at V(1995).

40C.D. Binnie and B.B. MacGillivray. Editorial: Brain mapping - a useful tool or a dangerous toy? 55(7) J. NEUROL. & NEURO. PSYCH. 527 (1992).

"Letter from Grace M. Kotowicz, Senior Research Associate, Department of Coding and Nomenclature, American Medical Association (July 27, 1995) (on file with author). 42688 So. 2d 1201 (La. Ct. App. 1997) 43802 P.2d 1024 (Ariz. Ct. App. 1990). 4688 So. 2d 1201 (La. Ct. App. 1997).

4'No. C 8-94-1729, 1995 WL 254409 (Minn. Ct. App. May 2, 1995).

'See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 47Ross,1995 WL 254409, at 2. 481d.

49See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). mid. at 592.

"'Ross, 1995 WL 2544092, at 2. 521d.

53These are all lower court cases that are not reported. s'"ark County District Court, Case No. A310684, Dept. VI, 1995.

55Deposition of Steven Glyman, M.D., Gambino v. Biaz, Clark County District Court, Case No. A310684, Dept. VI, September 22, 1995. 56Clark County District Court, Case No. A381550, Dept. XV, 1996. 5'Gootkind v. Chinander and Hertz Equipment Rental Corp., Clark County District Court, Case No. A326765, Dept. XI, 1996.

5sClark County District Court, Case No. A294528, Dept. X, 1995. 59881 F.2d 941 (lOth Cir. 1989). 6ld. at 942-43.

61id. at 944.

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