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Deposition Designation Station

Facts of the Case: Mr. B was a 75-year-old man who had made a will in 1995 naming his two sons as equal beneficiaries of his estate after his death. In 2004, he married Ms. M. On August 11, 2008, he was diagnosed with brain cancer, for the treatment of which he was hospitalized. On September 3, 2008, he signed a new will that Ms. M had procured for him, naming her the sole beneficiary of his estate after his death, to be subsequently given to his sons after the event of her death. Mr. B passed away on September 29, 2008. His sons subsequently sued Ms. M, alleging that Mr. B did not have testamentary capacity when he signed his new will. His attorney consulted me to review his medical records to assess Mr. B's mental state, testamentary capacity, and vulnerability to undue influence.

Evaluation: Review of the medical record revealed that Mr. B was a 75-year-old man with a medical history of type II diabetes, hyperlipidemia, hypertension, and chronic-obstructive pulmonary disease. He smoked 1 pack of cigarettes per day. He drank 1-3 drinks per day. He did not have a history of illicit drug use.

Mr. B had presented to the emergency room on August 10, 2008, with a 2-3 week history of progressive memory and speech problems. His family had noticed that he was not taking interest in his daily activities, not going out or working on the yard, and talking much less than usual. A head CT revealed a left frontal lobe mass, and a brain MRI further characterized two lesions, which were cystic in nature. On the same day, he underwent left frontal craniotomy for biopsy, debulking, and cyst drainage. Pathology report confirmed that the lesions were glioblastoma multiforme, an aggressive brain tumor. Aggressive debulking during surgery was not performed due to concern for the location of the tumor next to the speech area and because of the multicentric nature of the tumor.

The next day, on August 12, 2008, a head CT without contrast showed that the brain was "status-post left frontal craniotomy with subcutaneous emphysema, left frontal lobe edema with subfalcine herniation and midline shift. Regions of focal hypodensity in the left frontal lobe may indicate developing encephalomalacia. There is a small amount of intraparenchymal hemorrhage, involving the anterior left frontal region and extending into the sylvian fissure."

Mr. B was seen by radiation oncologist on August 13, 2008, who documented that "Family noted that he sleeps a lot and speech and memory remain impaired. He has a hard time with word finding. He struggles to complete activities and make sense of processes that used to be automatic for him like running the garbage disposal. Family notes he fatigues quickly and grows more confused later in the day." He had continued to drink after the surgery, in smaller quantities, although the exact amount was not specified. The physician noted that Mr. B was a "fatigued-appearing man, struggles to find words." His score on the Karnofasky Performance Status scale, which is used to measure functioning in cancer patients, was 60%, indicating that he "requires some assistance with ADLs [activities of daily living - ie. bathing, dressing, ambulating, toileting, etc.] but able to care for most personal needs." His neurological exam revealed that "the patient is alert, awake, and oriented x three. Very slow to respond and struggles to express himself but answers are appropriate; right patellar [deep tendon reflex] is more brisk than left, gait is slightly wide but able to ambulate."

Also on August 13, 2008, Mr. B was seen by his neurosurgeon, who noted that "Family continue to notice that he is withdrawn, sleeps a lot. Speech is impaired." He also documented that, on exam, he "Responds to questions appropriately. Has motor dysphasia. Has hard time finding words. Comprehension is good."

Mr. B was seen by a medical oncologist on August 20, 2008, who noted that "Patient is mostly aphasic and most of the history is provided by his wife. His wife states that patient has been deteriorating. He can ambulate without difficulty however has been having problem with bathing himself. He says yes when asked if he has a headache but cannot provide further information." Due to concerns about the aggressive nature of the tumor and Mr. B's declining functional status, chemotherapy was not pursued, and a course of radiation therapy and hospice care was decided upon.

Mr. B's medications on August 20, 2008, were Percocet 5/325 mg 1-2 tablets every six hours as needed for pain; Lisinopril 20 mg daily for kidney protection; omeprazole 20 mg daily for acid reflux; simvastatin 20 mg daily for cholesterol; trazodone 50 mg at bedtime for sleep; and aspirin 325 mg daily. He was started on dexamethasone 4 mg four times a day (a steroid medication to decrease swelling around the tumor) by his radiation oncologist on September 1, 2008. He signed the new will on September 2, 2008. The available medical records did not provide his medical course over the next month. Mr. B passed away on September 29, 2008.

Conclusions: Based on the evidence in the medical record, it was my expert opinion that Mr. B lacked testamentary capacity and was highly vulnerable to undue influence at the time of signing of this will. The frontal lobe, particularly the left frontal lobe, is the portion of the brain highly involved in complex cognitive processes such as logical reasoning, decision-making, planning, conceptualizing the minds of others, language, and abstract thinking. The two lesions in his frontal lobe were fairly large. One day after surgery, in which his tumors were only partly debulked, his head CT showed swelling of the brain, with downward and rightward shifting of brain tissue, possible early development of scarring ("regions of focal hypodensity in the left frontal lobe may indicate developing encephalomalacia"), and bleeding in the brain ("a small amount of intraparenchymal hemorrhage"); Each one of these findings can disrupt proper brain functioning in and of themselves, and, taken together, along with partly-debulked brain tumors, their impact on proper brain functioning can be cumulative.

The medical records documented extensive behavioral evidence of severely impaired cognition secondary to frontal lobe dysfunction. For example, his inability to run a garbage disposal indicated that he was not able to organize his thinking enough to operate a simple device that he had previously known how to operate. His inability to bathe himself despite being able to ambulate (indicating adequate motor function) was likely due to his inability to conceptualize and organize the sequence of individual tasks involved in bathing, which is a frontal lobe function. His decreased involvement in usual activities such as working on the yard was likely due to apathy, which is a common syndrome seen in patients with frontal lobe damage. Slowness of movements (psychomotor retardation) and easy fatigability (task impersistence) are also sometimes seen in patients with frontal lobe injuries, and both findings were documented by his physicians. The left frontal lobes also play a significant role in language production, and Mr. B's significant expressive language impairment was thoroughly documented in the chart. In addition to the brain tumor, other factors that may have impacted negatively upon his cognition include his ongoing alcohol use and use of narcotic pain medications (Percocet), both of which can cause cognitive slowing and memory impairment. In the context of these multiple risk factors impacting on his cognition, it was my assessment it was highly unlikely that Mr. B understood the nature or implications of the testamentary documents that he was signing or that he was in a state of mind to resist any attempts at undue influence.

*Note: This case is fictional and written for educational purposes. Ideas for this case report were inspired from real cases, but names, dates, location, ages, and clinical details have been altered to protect confidentiality.

Dr. Aazaz Haq, MD, is the founder and CEO of Bay Forensic Geropsychiatry, a consulting firm and educational resource center for Geriatric Psychiatry. He has subspecialty training in geriatric psychiatry and is certified by the American Board of Psychiatry and Neurology in both geriatric psychiatry and adult psychiatry. A practicing geriatric psychiatrist, Dr. Haq has expertise in all aspects of mental health issues pertaining to the elderly, particularly matters relating to dementia, cognitive impairment, impaired capacity, and vulnerability to undue influence.

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