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PSYCHOLOGY: The Complexity of Psychological Malingering

In personal injury cases, disability claims or industrial accident cases that involve potential emotional distress damages, a defense expert may describe a plaintiff as a “malingerer”, indicating that that the plaintiff is exaggerating or faking psych

By S.C. PhD.

 

In personal injury cases, disability claims or industrial accident cases that involve potential emotional distress damages, a defense expert may describe a plaintiff as a “malingerer”, indicating that that the plaintiff is exaggerating or faking psychological symptoms.

An expert should not definitively diagnose malingering unless he or she is certain the plaintiff is faking symptoms. A litigant who presents in the office with a limp allegedly caused by leg pain from an automobile accident might be observed walking without a limp in the parking lot outside the office immediately following the exam. Objective signs that are inconsistent with a litigant’s report of nightmares caused by trauma would not typically be observable.

Defense experts sometimes telegraph a degree of uncertainty about an assertion of malingered psychological symptoms by using such terms as “possible malingering”, “probable malingering” or “rule out malingering”. These formulations (though clinically weak), can sometimes have the desired effect of allowing the defense expert to “have his cake and eat it too” by implying that the plaintiff is faking, while not actually saying so.  This technique may be used in some instances when observable signs of faking are not apparent.  

Some years ago, while I was testifying at a trial, another psychologist who was not available to testify wrote a report in which he indicated that the plaintiff was faking by employing such “rule out malingering” language.  The judge (who was apparently well-versed in such obfuscation) asked me to comment on this diagnostic formulation.  My response was that using a term such as “rule out malingering” is like yelling “there is no FIRE in this movie theatre”. One may be much more likely to focus on the word “fire” than on the rest of the statement. Similarly, the reader of a psychiatrist’s report or a jury may be more likely to focus on the term “malingering” than on the “rule out” aspect of the terminology and draw a conclusion that is not what is stated or written.  This is a form of diagnosis by innuendo.

“Malingering” is the term found in the Diagnostic and Statistical Manual of Mental Disorders that psychiatrists, psychologists and other mental health professionals may use to describe “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution or obtaining drugs”. 

Judges, juries or claims adjustors may afford an unusual degree of credibility to psychiatric and psychological experts.  Because of this, a mental health defense expert who believes that the plaintiff is faking should state so clearly and unambiguously, offering substantiation for such an opinion.  In my view, an opinion that a plaintiff has engaged in malingering should be based, at least in part, upon objective psychological testing.  The objective psychological test or tests utilized must contain “validity scales” or other special functions that are built into the psychological test that allow the expert to scientifically assess the attitudes with which the plaintiff has approached the test.

One psychological test that contains these special “validity” scales is the Minnesota Multiphasic Personality Inventory (MMPI-2). The MMPI-2 has been described as the “Cadillac” or “gold standard” of objective psychological tests and is also a standard against which other tests of malingering are measured. The MMPI-2 contains 567 true-false questions and yields scores on approximately 100 scales that are used to determine whether the test-taker is anxious, depressed or likely to present symptoms of PTSD or other mental disorders. More importantly for this discussion, the MMPI-2 is able to provide objective and scientifically based information about whether an individual has honestly described his or her psychological symptoms, or whether there has been an attempt to exaggerate or minimize psychological symptoms; perhaps in order to obtain an external incentive, such as money damages in a lawsuit.

In personal injury litigation, disability and worker’s compensation claims, the test-taker may have an incentive to appear more psychologically disturbed than is the case.

Research studies have shown that the MMPI-2’s F Scale, which consists of 60 special test items, can reliably identify the tendency of some test-takers to exaggerate psychological problems.  Berry, Baer and Harris (1991) analyzed the data from 28 studies of malingering on the MMPI and found that most of the studies supported the MMPI’s ability to detect fakery.  Schretlen (1988) reviewed the research findings for the use of psychological tests in detecting malingerers and reported that the MMPI was valuable for this purpose.  He concluded that “it is probably indefensible to render expert testimony regarding the likelihood of malingering without psychological test data bearing on this question”.

Failure to identify or rule out malingering of psychological symptoms may result in significant negative consequences for attorneys on both sides of a legal case. The plaintiff’s attorney who does not retain a psychological expert on this issue may suffer when an opposing expert presents scientific evidence that the plaintiff’s claims are exaggerated or faked. The defense attorney who does not challenge the credibility of the plaintiff’s emotional distress claims may fail to defeat a case built on unsubstantiated allegations.  A lawyer who fails to test the credibility of emotional distress claims does so at his or her own peril.