The Patient is Malingering
by Dorothy C. Sims, Esq. Ocala, Florida

Ooooooh, don't get me started on this one. I hate these guys who claim "science" supports the conclusion that your client is a bold faced liar.
The most official definition of malingering is essentially someone who meets two out of four criteria:

  • They are involved in a law suit.
  • Their claimed level of disability is different than one would expect based on objective findings.
  • The plaintiff wasn't cooperative during the exam
  • and/or
  • The plaintiff has anti social personality disorder.24

Often the doctor retained by the defense will claim the plaintiff's condition exceeds what one would expect for the physical findings.

However, in most cases this requires the defense doctor to completely ignore the majority of the evidence, starting with the treating physician. The defense witness will rely only on other defense experts to claim the plaintiff doesn't have a real physical condition.

There is a name for this. It's called "confirmatory bias" (well, actually I call it bullshit) which exists when an individual ignores all data and information that is contrary to the conclusion he or she wishes to reach.

For someone to modify their behavior, i.e. act in a certain way to get desired results, that modification is most successful if there are rewards that are direct, immediate and constant. Now think about this.

Your client is injured in 2000. It may take 5 years to get to trial Even then, the jury may not find for your client.
So, the benefits are not:

  • Direct
  • Immediate
  • Constant

Wait!
Doesn't the defense doctor get paid right after, or even BEFORE the evaluation? I.e. reward is:

  • Direct
  • Immediate

Hasn't the defense doctor gotten paid in ALL cases and doesn't he or she make millions over the years from the defense?
Thus, the rewards are direct, immediate and constant!

So, the one who has the most motivation to modify their behavior (i.e. Lie) is THE DOCTOR.

"By the way, doctor, did anyone administer a test to you to see if you were being honest?"

You can also go down another road guaranteed to get a chuckle.
Here's an actual deposition:

Q: Doctor, have YOU ever lied?
Pause
A: No. Not since I was a child.
Q; How old are you?
A. 59
Q So you are saying you have NEVER told a lie in 41 years, never fudged a bit if your wife asks, "Does this dress make me look fat?"
A. Correct
Q: Doctor, are you aware that if you answer a question on the MMPI2 indicating you have never told a lie you get a point towards being a sociopath because EVERYBODY LIES?
Pause
A. Yes.

Or

Ok. What if the doctor admits to telling a lie?

Q: doctor, you've taken no test yourself in this case to tell us if YOU are honest, right?
And just because you lied in the past, you would not suggest that we cannot count on anything you have to say here today, right?
A: correct
Q: so even if the plaintiff DID lie in the past, it doesn't mean we should reject what she has to say here today either, right?

Why administer malingering tests?

Psychologists have been attacked for testifying based upon data provided by the patient. How does one know the patient was honest? What if they were only pretending to be depressed? How do you know if the patient is exaggerating?

These questions discount the doctor's own ability to tease out information independent of the tests to draw questions on credibility.

In response to these attacks, various malingering tests were developed. Other tests may be used as malingering tests that were not created as such.

Tests used to claiming support of malingering include:

  • Word Memory Test
  • Test of Memory Malingering
  • Rey's 15 item test
  • Portland Digit Recognition Test
  • Application of Lees-Haley Fake Bad scale to MMPI2
  • Structured Interviews

Other tests used to claim malingering which were not intended for this purpose include:

  • Forced choice component of the California Verbal Learning test.
  • Wisconsin Card Sorting Test
  • MMPI2 (certain scales)
  • Millon Clinical Inventory (certain scales)
  • Personality Assessment Inventory (certain scales)
  • Pain scales that rate the type of pain or effect of pain such as
    • McGill Pain Scale
    • Modified Somatic Pain Questionnaire
    • Pain Disability Index
    • Oswestry

How do they work? The theory is that if a patient does too poorly on a test, especially if he or she does worse than chance, he or she KNOWS the correct answer and is intentionally answering the questions incorrectly to appear impaired.

However, there are a number of problems with this proposition. Many courts reject the ability of one witness to comment on the credibility of another.25 That is simply the job of the jury. Malingering tests are nothing more than doctors claiming "science" backs their ability to call the plaintiff a liar.

A person can still have a brain injury/physical injury/depression regardless of his or her scores on "malingering" tests.

The results of "malingering" tests does not permit one to conclude, with any accuracy, just what percentage, if any, of the testimony the plaintiff has given is true or untrue. Furthermore, "malingering" tests do not permit one to conclude anything about future testimony or acts.

Malingering tests were created by having individuals "pretend" to malinger and (how would they know how true malingerers would behave?) "malingering studies have often been criticized because the circumstances under which research subjects falsify (their symptoms or performance) differ from those under which real malingerers operate."26

The fact that a person may not try hard on a test can be an example of low motivation which can be entirely consistent with Major Depression. In fact, the DSM TR suggests that, "Even the smallest tasks seem to require substantial effort.27

Assuming someone is malingering or lying because they do poorly on a test that most people pass does not consider:

  • The patient may actually just not care (Anhedonia: symptom of depression)
  • The patient may not trust that the doctor will honestly believe him or her so it is, in effect, a cry for help.
  • Remember, individuals with brain damage may have problems with motor function (i.e., taking a malingering test on a computer, i.e., Word Memory Test) or difficulty in seeing (visual field abnormalities) and may miss a great number of questions just based upon the location on the page.
  • Furthermore, hearing may be a problem and instructions may not be heard or understood. Nonetheless, the defense doctor will automatically conclude MALINGERING.
  • Carpal tunnel syndrome
  • If the test requires the use of a computer (MMPI2, Word Memory Test) and your client has no experience in computer use, (some people have "computer anxiety")
  • Difficulty reading
  • Extreme anxiety
  • Interference from the doctor (cell phone rings, door opens OR, what I call the T.T.I.E. Example– I had a doc who was always finding my male clients to do so poorly on the malingering tests they must obviously be faking. I sent a videographer. What did I see? Hooboy. It was funny. There is my poor client, eyes glazed, drool on dripping from the corners of his mouth. Why? The doctor used a "psychometrician" who is the person who actually gives the test. Many states require no formal training for this position. The "psychometrician" was really a very attractive aerobics instructor, heavily endowed, giving tests that required bending over (in a low cut tight dress) and showing the plaintiff cards etc. I call that the Ta Ta Interference Effect.
  • Anger. Many brain injured patients have increased irritability. They don't want to be in the room with the defense ‘ho. They know they are not going to get a fair break. They are angry anyway and have poor impulse control. Therefore, doing poorly is the equivalent of telling the doctor to fuck off. Example. Teenage girl given malingering test. Does horribly. Misses EVERY SINGLE QUESTION. Why? She was sooooo pissed. How did I know? Well, one of the tests involved the COWAT or Controlled Oral Word Association. That involves telling the patient to come up with as many words as they can starting, say, with the letter "F." Like
    • "Food"
    • "Famine"
    • "Friendly"
    You get the point. This young girl? HER F words?
    • "Fucking"
    • "Fricking"
    • "Flaming"
    • "Faggot"
    Hmmmm. Think might have some anger issues???
  • Brain injury. Brain injured patients get distracted very easily and have problems focusing. Sure, they CAN answer each question but they don't because they lose focus. If the doctor claims that even people with Alzheimer's disease can pass this test, ask him at what level in the course of the disease were these guys used? In other words, if you get some guy who was in early stages of Alzheimer's disease, he might do much better and have better cognition than someone with severe brain injury.
  • Pain. Everyone knows pain can interfere with concentration. Doctors have often testified this does not apply to "malingering" tests. No matter how much pain the plaintiff is in. At times like that it's a good idea to take this nonsense to the extreme.

"Doc, you are telling me that no matter how much pain my client is in, it will not affect his ability to perform this test, answer questions correctly, etc, right?:"

"That's correct, counselor"

"Come on, doc, doesn't intense pain interfere with concentration, even on this test?"

"Nope"

"Doctor, do you have children?"

"Yes, why?"

"Doctor, were you present when they were born?"

"Yes."

"So, when your wife was dilated l0 centimeters and in the middle of a contraction you said 'honey, I'm going to give you this here malingering test because I think you are exaggerating the pain in those contractions and I want you to pay attention and focus.'

"You give the test."

"Are you really going to sit here and say that pain won't interfere with the questions?" (assuming, of course, your wife let's you live after your little experiment)

Malingering tests cause the doctor to lie to the patient or, at a minimum, behave in a deceitful manner. For example, doctors may administer the "Word Memory Test" Some doctors may tell the patient he or she will be given a memory test and it will be difficult. That test is neither a memory test nor is it difficult. It is actually quite easy. Furthermore, NONE of the "malingering" tests are given in a straightforward manner, i.e. "Here, I am going to test your motivation to see how much you might be REALLY trying. I am going to try and catch you not trying hard." Recently, the deposition of a nationally known neuropsychologist who a malingering test. He testified in response to a question as to whether he was misleading the plaintiff when administering the malingering test because he introduced the test as difficult etc. The testimony below reveals how bad this can make a doctor look. There is no juror out there who will be comfortable with a doctor who is trying to justify lying to a patient.

Q. Okay. Something about them being difficult but do the best you can kind of thing?
A. That kind of thing.
Q. That's actually a lie, isn't it, Doctor?
It's not a -- they're not difficult and in fact
they're not a memory test. They're a test to see if
they're malingering; and to give the test, it requires you to lie to the patient? A. Well, yeah, that's probably fair.28

He or she may do quite poorly on the test and incorrectly be labeled a malingerer. False accusations of malingering are harmful not only to your case, but to your client as well. TAKE the malingering test yourself. Understand it. Research the weaknesses. Do not, however, absolutely DO NOT instruct your client on how to take the test. It's unethical. Period.

I'm proud to say that I can count on one hand the number of times lawyers who retain me ask me how their client could "beat" the test. In fact, no one has ever come right out and said it. Only a few attorneys have given vague hints in that direction.

This is why I prefer to never meet or speak to the plaintiff until AFTER all testing is completed. There can be no question that anything like that occurred.

Personality assessment tests have built in scales to see if the patient might be exaggerating good qualities (such as someone in a custody dispute) or exaggerating psychopathology (such as in a personal injury claim) this does not mean the doctor can generalize and conclude the patient is faking everything. This finding merely invalidates the test results meaning the only reliable data are from the plaintiff's doctor (assuming the plaintiff passed validity scales in that test).

There are many Games Defense Doctors Play with "Malingering" Tests or Neuropsychological Test in General

They include:
Often bad guys will ignore the multiple validity scales within these tests and claim malingering by relying, on, say, poor scores on Trailmaking A (which is NOT a malingering test but, in fact, a test of executive function of the brain)

Example: "So, Doctor, my client was given the MMPI2 and passed ALL validity scales, for example, the:

  • Vrin
  • Trin
  • L
  • K
  • Fp
  • Fb
  • F

(these are various validity scales within the MMPI2 designed to determine whether the individual gave true effort and the test results are reliable)

"Let's see now, that's SEVEN different scales to tell us if the plaintiff is approaching the test in an honest and straightforward manner and he PASSED them all."

"You conclude malingering depression based on the PASAT which was never created as a malingering scale, has no manual permitting or even encouraging the test to be interpreted in such a way nor does it have any standardized scoring manual and doesn't test depression, right?"

I have to say, sadly, that each example of manipulation of data and test results actually happened in real cases.

You may even need the doctor to read into the record what the test was created for as indicated in the manual if he or she is claiming something to the contrary.

This can be investigated by simply asking if the test was actually created for the purposes of determine malingering.

What if there IS no test manual?

When these tests are administered, I always subpoena the test manuals. Why? Because often there aren't any! There are no formal scoring manuals either. Translation: The doctor has free reign to claim they mean anything. Many states may have codes of ethics requiring the psychologist to rely upon adequately normed data. So, not only does this method violate codes of ethics, it is also no scientifically reproducible and is not, therefore, permitted to make it to the jury.

You can also look to the American Psychological Association's Code of ethics on this topic.
current purpose which states:

9.09 Test Scoring and Interpretation Services

  1. Psychologists who offer assessment or scoring services to other professionals accurately describe the purpose, norms, validity, reliability, and applications of the procedures and any special qualifications applicable to their use.
  2. Psychologists select scoring and interpretation services (including automated services) on the basis of evidence of the validity of the program and procedures as well as on other appropriate considerations. (See also Standard 2.01b and c, Boundaries of Competence.)
  3. Psychologists retain responsibility for the appropriate application, interpretation, and use of assessment instruments, whether they score and interpret such tests themselves or use automated or other services.29

What if the test really was created to determine your client was malingering. How do we know your client flunked? Always ask the score that the MANUAL says represents flunking and ask the doctor if the patient actually flunked pursuant to the manual's scoring method. I can't tell you how often the doctor claims the patient flunked, then when presented with the manual admits, per the manual, the patient PASSED and cannot cite the science behind his or her own creative scoring. Nauseous yet?

What if your client was administered several trials of a test and passed most but not all? The defense oriented doctor is quick to claim that gives him the right to conclude overall malingering. Demand he or she show you WHERE in the manual that is permitted.

Furthermore, frequently, if the test IS administered and the patient passes, the defense doctor may leave that particular piece of information out of his or her report. I've had a doctor admit he doesn't report when patients PASS malingering tests, only when they flunk. He admits he has NEVER in over 20 years, EVER testified a plaintiff was telling the truth and frequently finds they are malingering. Some doctors may, for example, administer the California Verbal Learning Test. One of the tests is called the Forced Choice component. This portion of the test has been used by some as a malingering scale. Defense doctors will report that poor scores are indicative of malingering and when they pass this portion that fact will be left out of the report. Translation: I'm only going to report evidence that supports the side retaining me.

That's baaaaaaad.

Lack of testing/testing
If the doctor concludes malingering but conducted no standardized malingering studies, what do you do? POINT IT OUT!

"Doctor, do you own tests used for malingering or response bias? You own them and didn't give them. Could it be you were worried the plaintiff would PASS?"

The doctor does malingering test but doesn't score it- happens all the time.
Also, the doctor does malingering test then lies about cutoff scores. The doctor claims pain scales are actually malingering scales.

If a client was given a test and does poorly, doctor claims it is a malingering test. if they do well he or she does not even talk about it or calls it something else. Examples of tests defense typically claim are malingering but NEVER created for that purpose and has no scoring manual permitting that interpretation:

  • Wisconsin card sorting Test
  • Oswestry
  • McGill Pain Scale
  • Modified somatic pain questionnaire
  • Pain disability index

Now, let's discuss some of the actual tests, themselves.

There have been claims on the part of defense doctors that patients learn the tests and then are successful at "beating" them. Therefore, this section will not go into the specifics of how the test is given so that claim cannot be made about this book. However, published criticisms of the tests will be addressed so you, the practitioner, can demand answers from the doctor using the test, and, also, see how this test is abused.

Lees-Haley Fake Bad Scale: Assume you have a depressed brain injured woman. This was created by Dr. Paul Lees-Haley to apply to the MMPI2 to determine if the plaintiff is a malingerer. The defense doctor then concludes, using this scale, that your client is a malingerer. Dr. Lees-Haley selected a number of questions from the MMPI2 and decided that if an individual answered "true" to some of the questions, and "false" to other questions, the conclusion could be drawn, based on how many of these questions were answered in such a fashion, that the individual was malingering.

Now, let's take a look at the science.

The criterion for determining that someone was malingering is not stated in his research. His article introducing this new scale saying only that patients were chosen because they appeared clearly to be malingering? Appeared to whom? On what basis? Was the determination made after data was examined? Did anybody ELSE independently think these people were malingering? Was it confirmed that they were malingering?

Therefore, how is one to reproduce his experiment? It is not possible because he failed to identify how he even determined the individuals in his initial study were malingering. This, of course, may fail a Frye analysis and may not be held to be scientific in accordance with Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923). Regardless of whether your state adheres to Frye standards or some other scientific requirement to be met before testimony is considered scientific, it is certainly an avenue to explore before permitting a doctor to claim science supports his ability to call your client a liar.

In a recent deposition of Dr. Lees Haley, the creator of the test, advised:

His practice is "almost all defense."30

His practice is so reliant upon defense referrals his template, or pre written report, already indicates the defense hired him before he even receives the referral.31

He treats no patients.32

By the time the case in question comes to trial, his charges could exceed $25,000.00.33

Let's apply his "fake bad scale" to a hypothetical client.
This "malingering" scale might just not be appropriate and could explain why Dr. James Butcher, the individual who co-normed the MMPI2, as well as Pearson Assessments, remains so opposed to the use of the Lees-Haley Fake Bad Scale on the MMPI2.34

When Dr. Butcher looked at the data on this scale, he found that women were found to be malingerers at a greater rate than convicted felons.35 "This scale also shows a bias toward classifying women as malingerers."36

This disturbed him. Unless women are, as a rule, less honest than criminals, perhaps there might be a problem. In fact, The Pearson Assessment, the publisher of the MMPI, teaches psychologists not to use this scale.37

Dr. Butcher wasn't the only one concerned about this test. "Moreover, the Fake Bad Scale is not likely to meet legal criteria in forensic cases because of the lack of empirical validity and the low level of professional acceptance of it as a measure of malingering."38

The Fake Bad Scale does not fit the bill because it greatly overestimates malingering in individuals with genuine psychiatric and psychological problems.39

Let's apply this test to a hypothetical plaintiff. Let's say a woman has a car accident with a suspected mild brain injury and herniated discs in her neck. She is on narcotics which upset her stomach. She has physical problems causing pain and becomes depressed.

The Lees-Haley Fake Bad Scale gives this woman a point towards malingering for each statement even when the patient is telling the truth.

  1. Feeling pain in her neck.
  2. Having headaches
  3. Having a great deal of stomach trouble (common, by the way, when taking narcotics and/or if suffering from anxiety)
  4. Sleep disturbance
  5. Having a hard time keeping her mind on his task
  6. Feeling like she is about to go to pieces
  7. Having more trouble than others concentrating
  8. Feeling pressure or stress
  9. Feeling tired most of the time
  10. Feeling her difficulties were piling up so much she can't overcome them.
  11. Having an unsatisfactory sex life
  12. Being so sick of what she has to do every day she just wants to get out of it all.
  13. Considering killing himself.
  14. Tiring quickly.
  15. Feeling like everything tastes the same (anhedonia)
  16. Having sleep that is fitful and disturbed (pain/depression can certainly cause this)
  17. Having trouble with nausea and vomiting (back to side effects of narcotics)
  18. Having pains
  19. Having nightmares every few nights (anxiety)
  20. Everything tasting the same (anhedonia)
  21. and, God forbid the woman wears glasses. She even gets a point towards malingering if his eyesight has deteriorated over time.

We are now up to 21 points towards malingering when each and every complaint can be clearly and honestly explained by this woman's condition.

Now, keep in mind that a woman only needs a score of 26 to be considered a malingerer.40 Pretty easy to do if you hurt, are depressed, and have a brain injury. In fact, one could conclude that failing the Lees-Haley Fake Bad Scale is proof of a brain injury instead of malingering.

An example of this type of problem with this "malingering" test is seen in Dr. Lees-Haley's testimony in a deposition taken in the Trotter, et al. v. Washington International, et al. case:

A: If she is feeling pain in the back of her neck and answers truthfully then that item would be wrong for her.

Q: She would get a point for malingering, according to your scale, even when she's telling the truth. Is that or is that not, Dr. Lees-Haley, correct?

A: If she's feeling pain truthfully and answers the question truthfully, yes.41

Minnesota Multiphasic Personality Inventory, 2. This test is the oldest most widely accepted personality inventory in the world. An individual is told to answer 567 true false questions. Based upon his or her answers, assumptions are drawn. For example, an individual with a certain pattern of answers might be similar to how a depressed population might answer the question. Therefore, one might conclude that the individual taking the test might be depressed.

Built within the test are certain scales to determine whether the individual was answering honestly or exaggerating psychopathology. The F scale is the scale defense doctors most often abuse. This stands for "frequency of items endorsed" meaning that someone who is exaggerating might answer true to questions that he believes people whom are depressed would answer. However, true depressed individuals would not answer that particular question in such a way. A high score can give one pause to consider exaggeration.

Often, an individual with concentration problems secondary to a brain injury or depression will score elevated in scale 8 of the MMPI2.42

Scale 8 is known as the schizophrenia scale. The unsophisticated or unscrupulous doctor may claim the elevation on scale 8 is meaningless or proof your client is a schizophrenic and therefore it is CLEAR the condition is not related to an injury. On the other hand, the doctor can claim it has nothing to do with concentration.

Upon cross, these doctors will have to admit that many of the MMPI2 questions dealing with concentration are found in this scale. If necessary, have the doctor read the questions that make up that scale into the record. If he or she objects, saying he or she cannot publish actual questions because they are copyrighted and threaten test security, point out the book, "MMPI in Court" by Dr. James Butcher is sold on http://www.Amazon.com and it has ALL of the questions of the MMPI in it.43

Often, various scores on this test will support, according to the defense doctors,

Modified Somatic Pain Questionnaire. That questionnaire consists of l3 questions asking about the type of pain experienced by the patient. If the patient endorses pain he or she actually has, and it is severe, he is labeled a malingerer. If he does not, the doctor can then conclude there is nothing wrong with him or her. WHAT A LOAD OF CRAP!!!

Portland Digit Recognition Test. This alleged malingering test has also been criticized for research showing that "interference format may make this technique as much a measure of working memory as anything else."44

Rey's 15 Item Test. This test also has problems. Some research shows that 27% of those tested in malingering range when only 15% were actually instructed to fake.45

Furthermore, research also shows, "Not only do some patients with focal memory disturbance do poorly on this test, but those with more diffuse cognitive impairment may perform poorly as well."46

WAIT JUST A MINUTE!
That means if someone does poorly on this test, IT ACTUALLY SUPPORTS a diagnosis of brain damage!

Don't let these guys claim poor scores mean malingering. Uh uh.

But wait, that's not all.

"Some studies show that patients with severe psychiatric disorders were prone to poor performance…"47

Is your client elderly? Watch out.
"…in combination with other non-motivational factors, older adults may be erroneously classified as malingering."48

So, if your client does poorly that can also indicate the presence of severe psychopathology and NOT malingering!

Test of Memory Malingering (TOMMS). According to the TOMMS manual itself, any individual scoring below a 45 on any trial is considered to be in the range of potential malingering49

Furthermore, malingering should not be diagnosed on this one test alone. (give cite

Think about it for a minute. That means if you make less than a 90% on this test you flunk.

Do you know any teachers that use such a rigorous system? If they dared to even try to flunk students who got 90% correct there would be a line of angry parents at their door.

Furthermore, there are some potential problems with the test itself.

The influence of psychological distress is not known further, additional studies of reliability and validity e.g. its utility w/respect to other measures to detect malingering, are needed.50

A review of the TOMMS manual itself confirms that the test was validated with "at risk" malingerers and "simulated malingerers." Translation: no malingerers in normative study so --WE DON'T EVEN KNOW HOW MALINGERERS WILL ANSWER THIS TEST. Further translation: NOT SCIENTIFIC.51

"...The diagnosis of malingering should NEVER be made exclusively on the basis of the score on the TOMMS."52

Furthermore, the manual indicates same page "in medicolegal contexts, one should to not jump to the conclusion that all fabrications or exaggerations of symptoms are motivated by financial gain."53

The manual also cautions that the diagnosis of malingering is of limited clinical utility. Also, malingering is not an all or none phenomena. Malingering does not exclude the possibility that a bona fide symptom might exist. Finally, the very reason we all file motions in limine for the M word- "the diagnosis of malingering is one of them most pejorative clinical judgments because, in essence, it accuses the individual of willful deceit, fraud, and perjury."54

Victoria Symptom Validity Test. This is a test designed to assess whether someone is exaggerating memory complaints. This test has limitations such that, "Even in cases where financial or other incentives exist, and the patient's performance is suspect, the patient may be legitimately impaired and/or acting without conscious intent. For example, patients w9t impaired judgment (perhaps reflecting executive dysfunction) may exhibit it chance-level performance."55

Word Memory Test. This test is often given by computer. As discussed previously, that fact alone may cause problems in accurate completion. Older versions were computer scored and printed out documents indicating very clearly that, if the individual passed, the answers were given, essentially in an honest and straightforward manner. Interesting enough, I had a doctor on a case and the actual print out was missing from the raw data in his file. I suspected it was because the plaintiff PASSED the test and the doctor didn't want that data in the file where someone like myself might make a poster sized trial exhibit of that quote.

Sure enough, after the judge ordered the doctor to produce the word memory test print out. There it was. The conclusion of the doctor was that my client was malingering. The computer printout, however, indicated no evidence of malingering.

Interesting.

Now. I do not like this test. Why? Because I see too many clients, clients whom I sincerely believe are trying their best, clients who pass other malingering scales, flunk the WMT.

In fact, recently a plaintiff's lawyer AND the treating psychologist took this test. They tried their best.

Often articles may support a conclusion that certain scores support the conclusion of malingering on these pain tests. DO NOT TAKE THIS AT FACE VALUE.

Concern is expressed about the funding sources of individuals creating these malingering tests. If one follows the dollar, it may very well begin with an insurance company.

Perhaps the bias of the researcher should be considered. Bias in publications has long been a serious problem (over-reporting and/or withholding responses).56

In fact, recent research reveals concealment occurs in data reporting in a MAJORITY of the cases.57

An observational study found that authors of randomized controlled trials frequently use concealment of randomization and blinding, despite the failure to report these methods.58

Educate yourself on the defense's nickel. In depositions use cross examination to learn more about the tests because when you do, you AND the jury will be outraged.
Demand to see the test.
Demand to see the answers.
Demand to see the test booklet that permits you to administer and interpret this test in such a fashion.

Was the test, for example, created with a normative sample of patients with low back pain and is it applied to your client who suffers from complex regional pain syndrome? Ahhh, the normative sample is not the same.

Complex regional pain syndrome can be so severe one of the sequella can be suicide. (international taxonomy on chronic pain CITE).

So, if your client was not represented in the normative sample so we don't know how people with crps will react when they take this test so we cannot apply this test to those individuals.

How do patients answer this test when they also are dealing with a condition that is so painful they want to die?

The American psychological association makes it very clear the normative sample must include patients like those upon which the test is applied. Specifically:

9.02 Use of Assessments
  1. Psychologists administer, adapt, score, interpret, or use assessment techniques, interviews, tests, or instruments in a manner and for purposes that are appropriate in light of the research on or evidence of the usefulness and proper application of the techniques.
  2. Psychologists use assessment instruments whose validity and reliability have been established for use with members of the population tested. When such validity or reliability has not been established, psychologists describe the strengths and limitations of test results and interpretation.
  3. Psychologists use assessment methods that are appropriate to an individual's language preference and competence, unless the use of an alternative language is relevant to the assessment issues.59

    Hmmmm. Since we don't know if people like your client will answer this test in the same fashion as the normative sample, then we cannot apply this test to that individual.

    Let's take a look at a concrete example. A few years ago I was teaching MMPI2 issues in Cuba. Amazingly enough, the scale measuring paranoia was more highly elevated in Cubans than Americans.60 Should the Cubans have been labeled paranoid in a society where free travel is restricted, the government monitors advertising, movies, news and freedom of expression is a concept not a reality? (Sounds like I'm described the United States, doesn't it?)

    No. Their answers reflected reality, not paranoia.

    Time to ask the sensitivity/specificity test.

    Doctor, are there ANY publications that give us the sensitivity and specificity (how accurate at diagnosing brain damage or ruling it out based on the combination of your choices of tests? NOTE: I did not ask about each individual test. Some will have published data. I am talking about the COMBINATION of tests chosen.

    Draw a bag. Put lots of dots in the bag. "Doctor, these dots represent tests you chose to give. How accurate is THIS BAG of tests, taken as a whole, in ruling in or out brain damage?" Answer? NO CLUE.

    "Now, doctor, if you gave a standardize (also called rigid) battery of tests, those figures DO exist, don't they? For example, there is published data on how accurate the Halstead Reitan is in ruling in or out brain damage if you give the whole battery of tests, right?"

    But not for what you did, right? And, according to the draft code of the Coalition of Clinical Practitioners in Neuropsychology, what you did was unethical, right?"61

    A good neuropsychologist will admit that even if one believes in malingering, it is still relatively rare even in brain injury cases.

    "This issue has been dealt with above, and will be only briefly summarized here. Simply put, it is the exception, not the rule, to find clients who are consciously using their deficits to their advantage. The vast majority of head injured patients are extremely frustrated and very eager to get on with their lives.

    "Unfortunately, it is true that a learned dependency is often established; many head injured persons become so used to others doing for them, that they come to believe that they are incapable and must be dependent, and therefore resist efforts to get them to do more things on their own.

    "While this process is insidious, common in clients who have been home and inactive for years, and absolutely destructive to the rehabilitation process, it is not malingering.

    "Learned dependency is by definition learned and therefore can be unlearned. Malingerers, however, become more resistant, not less, as they are forced to do more. Most"62

    Physical Malingering Tests:

    Waddell's signs. Often medical doctors will claim that positive Waddell's signs are evidence of malingering. This is not true. Waddell signs consist of doctors performing physical maneuvering such as non-axial loading, wherein the doctor pushes the top of the patients head and asks if it elicits low back pain. Physiologically it cannot. If the patient claims that it does, the doctor concludes evidence of malingering. This is an incorrect usage of the signs. They were originally created to determine whether the patient needed a psychiatric referral, NOT for malingering. In fact, Waddell signs are a poor predictor of malingering.63

    It is interesting that the defense doctors will frequently use the Waddell's for this purpose but never, ever refer the plaintiff to a psychiatrist. They just leap to the lying conclusion.

    The lawyer is urged to watch a video of the examination. Often the patient will bend when his/her head is pushed and that CAN cause low back pain. Perhaps the patient may even DENY the pain contrary to the doctor's testimony. Furthermore, often in the exam the attorney will find that the doctor claimed to have performed certain physical tests that were never performed.

    Recently, in trial, I asked a doctor about the "Normal" neurological exam.

    Q. Doctor, throughout your report is "WNL" correct?
    A. Yes
    Q. Doctor, your testimony was that WNL stood for "within normal limits", is that correct?
    A. Yes.
    Q. Doctor, isn't there another term of art in your profession that says "WNL" actually stands for "WE NEVER LOOKED?"
    A. Uh, well, yeah.

    Jury gets the point.

    Dorothy Sims is the founding partner in Sims, Amat, Stakenborg & Henry, PA with offices in Gainesville and Ocala, Florida. She has lectured throughout the US and internationally on medical/legal issues.

    Notes:
    • 24 Am. Psychiatric Ass'n., Diagnostic and Statistical Manual of Mental Disorders, 739 (4th ed.1994).

    • 25. Lenz v. Commonwealth, 261 Va. 451, 469, 544 SE 299, 301 (2001); Kimberlin v. PM Transport, Inc., 264 Va. 261, 266, 533 SE2d 665, 667 (2002); Feller v. State, 637 So.2d 911 (Fla. 1994); See also, Mills v. Red Wing Carriers, Inc., 127 So.2d 453 (2d DCA 1961).

    • 26. David Faust & Margaret A. Ackley, Did you Think It Was Going To Be Easy? Some Methodological Suggestions for the Investigation and Development of Malingering Detection Techniques, Detection of Malingering During Head Injury Litigation (1998).

    • 27. Am. Psychiatric Ass'n., Diagnostic and Statistical Manual of Mental Disorders 4th edition, 350 (1994).

    • 28 Trotter et al. v. Washington Group Int'l. et al., Case No: A466763, Dept No: V111 (D.C Clark Co. NV 2004), Deposition of Lees- Haley.

    • 29 http://www.apa.org/ethics/code2002.html.

    • 30 Trotter et al. v. Washington Group Int'l. et al., Case No: A466763, Dept No: V111 (D.C Clark Co. NV 2004), Deposition of Lees- Haley at 94.

    • 31 Trotter et al., Deposition of Lees- Haley at 23-25.

    • 32 Trotter et al., Deposition of Lees- Haley at 68.

    • 33 Trotter et al. v. Washington Group Int'l. et al., Case No: A466763, Dept No: V111 (D.C Clark Co. NV 2004), Deposition of Lees- Haley at 93.

    • 34 James Butcher, et al., The Construct Validity of the Lees-Haley Fake Bad Scale. Does this scale measure somatic malingering and feigned emotional distress?", Archives of Clinical Neuropsychology 18, 473-485 (2003).

    • 35 Id.

    • 36 James Butcher, The Construct Validly of the Lees Haley Fake Bad Scale: Does this Scale Measure Somatic Malingering and Feigned Emotional Distress, Archives of Clinical Neuropsychology l8 482 (2003).

    • 37 Id.

    • 38 James Butcher, The Construct Validly of the Lees Haley Fake Bad Scale: Does this Scale Measure Somatic Malingering and Feigned Emotional Distress, Archives of Clinical Neuropsychology l8 473-485 (2003).

    • 39 Id. at 484.

    • 40 Paul Lees-Haley, Efficacy of MMPI2 Validity Scales and MCMI-II Modifier Scales for Detecting Spurious PTSC Claims: F, F-X, Fake Bad Scale, Ego Strength, Subtle-Obvious Subscales, DIS and DEB, Journal of Clinical Psychology 48, 681-89 (Sept. 1992).

    • 41 Trotter et al. v. Washington Group Int'l. et al., Case No: A466763, Dept No: V111 (D.C Clark Co. NV 2004), Deposition of Lees- Haley at 262.

    • 42 Nils R. Varney & Richard J. Roberts, The Evaluation and Treatment of Mild Traumatic Brain Injury, 297 (1999).

    • 43 Kenneth S. Pope, James N. Butcher, & Joyce Seelen, The MMPI, MMPI2 and MMPIA- In Court 1- A Practical Guide for Expert Witnesses and Attorneys, Am. Psychological Ass'n.( 2d. 1999 ).

    • 44 Muriel Lezak, Neuropsychological Assessment 773 (4th ed. 2004).

    • 45 Otfried Spreem & Esther Strauss, A Compendium of Neuropsychological Tests, Administration Norms and Commentary, 2nd edition, Administration MS and Commentary, 675 (2d. 1998).

    • 46 Otfried Spreem & Esther Strauss, A Compendium of Neuropsychological Tests, Administration Norms and Commentary, 2nd edition, Administration MS and Commentary, 673 (2d. 1998).

    • 47 Muriel Lezak, Neuropsychological Assessment 779 (4th ed. 2004.

    • 48 Otfried Spreem & Esther Strauss, A Compendium of Neuropsychological Tests, Administration Norms and Commentary, 2nd edition, Administration MS and Commentary, 675 (2d. 1998).

    • 49 Preston W. Tombaugh, TOMMS Manual (1996).

    • 50 See Otfried Spreem & et al. at 677.

    • 51 Preston W. Tombaugh, TOMMS Manual 16 (1996).

    • 52 Id. At 19.

    • 53 Id.

    • 54 Id. at 21

    • 55 See Otfried Spreem & et al. at 684.

    • 56 PA Higham, Strong cues are not necessarily weak: Thomson and Tulving (1970) and the encoding specificity principle revisited, Memory and Cognition, 67-80 (Jan. 2002).

    • 57 J Clin Epidemoil12, 57, 1232-6 (Dec. 2004).

    • 58 PJ Devereaux, et al., Need for expertise based random control trials, Department of Medicine, Department of Clinical Epidemiology and Biostatistics McMaster University, (Jan. 2005).

    • 59 Http://www.apa.org

    • 60 Karina M. Quevedo & James N. Butcher, Chapter in R. Velasquez & M. Garrido Handbook of Latino MMPI-2 Research and Application, (Lawrence Erlbaum Press 2003).

    • 61 Coalition of Clinical Practitioners in Neuropsychology, Code of Ethics for Coalition of Clinical Practitioners in Neuropsychology at http://www.neuropsych.com/CCPNgoals.htm

    • 62 Thomas Kay & Muriel Lezak, Traumatic Brain Injury and Vocational Rehabilitation at http://www.getrealresults.com/tenmyths.html.

    • 63 David A. Fishbain, et al, A Structured Evidence- Based review on the Meaning of Nonorganic Physical Signs: Waddell Signs, Pain Medicine 4 (June 2003).


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