Court Excludes qEEG testing under Frye Standard
Oct 21, 2021
More traumatic brain injury (TBI) cases are being tried based on new controversial brain imaging studies. The plaintiffs’ theory is that the new imaging allows the jury to see the brain injury through ominous appearing color-coded brain maps and diagrams/charts. But a large majority of the medical community has concluded these new studies are not valid or reliable for many reasons. Some of the new brain imaging tests are DTI, qEEG, SPECT scans, and ASL. The issue is whether these tests are valid, reliable, and helpful to the jury.
We recently prevailed in King County Superior Court on a Frye motion to exclude any evidence of qEEG testing as a basis to diagnose TBI or as a basis for treatment. QEEG is a computational analysis of EEG output. In our case, a local RN performed the testing (she admitted no health insurer reimburses for this testing) and sent the output to a neuropsychologist in Arkansas for analysis. The general basis for our successful motion was that qEEG results are not generally accepted in the applicable medical community for diagnosing or treating TBI. Therefore, the evidence was not admissible under Frye v. United States and Evidence Rules 702 and 403. We supported our motion with testimony of Jeffrey Tenney, MD, lead author of the recently published qEEG Practice Guideline for the American Clinical Neurophysiology Society. Our motion listed many reasons why qEEG should not be admissible and why most physicians in this field do not consider it reliable for diagnosing TBI or as a basis for determining treatment.
Please let us know if you would like further information on this case and our motion to exclude qEEG testing on a TBI claim.