Alleged mental injuries are often the subject of litigation. Injuries that impact an individual emotionally, or which disrupt brain functioning due to brain trauma, are frequently at issue in personal injury, workers’ compensation, disability, or employment discrimination/harassment lawsuits. Plaintiffs may present with apparent post-traumatic stress disorder, depression, anxiety, social withdrawal, personality changes, irritability, memory complaints, and/or reasoning difficulties.
In the litigation context, these complaints and disorders are often problematic because the process of identifying them relies so much upon the subjective reports and complaints of the injured party. This raises validity concerns. For example, a 45-year-old injured worker undergoes two shoulder surgeries. He experiences improvement in his shoulder pain, and is released for work by his orthopedic surgeon. But he is also receiving treatment for a depressive disorder that was apparently triggered by the stress of his surgeries and loss of self-esteem connected to his physical injury. He tells his treating psychiatrist that he can’t get out of bed in the morning, has no appetite, has no energy, and is preoccupied with suicidal thoughts. The psychiatrist opines that he is disabled due to the mood problems, and can’t return to work. The employer is on the hook for continued payments and medical expenses. But how do we know that the worker is being truthful about his depression?
Until recently, mental health professionals had no scientifically proven way to assess the validity of a patient’s complaints. If a patient complained of depression, and their mental status examination findings (i.e. observations of the patient made by the clinician) were consistent with depression (e.g. sad expression, listless appearance, slow movements) then the clinician had no choice but to conclude that the patient was depressed. The same was true for a host of other mental health problems: post-traumatic stress disorder, memory loss, rage, psychosis; if the patient says she has it, and looks like she has it, well, she probably has it. Due to the subjective nature of both the complaints and the assessment procedures, it was very easy for an injured person to magnify their complaints, if not outright feign having problems they don’t have.
In the first decade of this century, there has been an explosion of research among clinical neuropsychologists who have successfully developed multiple procedures for scientifically determining the validity of a patient’s mental health claims. These procedures have become highly sophisticated, are well-accepted by psychiatrists and psychologists, and have a known error rate. As such, they meet and have been found to meet Daubert criteria by many courts.
One procedure is the self-report inventory. These are typically lists of questions, checklists, or inventories containing both symptoms and pseudosymptoms. Pseudosymptoms are behaviors that are popularly believed to be exhibited by the mentally ill, but which really rarely occur. If a patient endorses an excessive number of these pseudosymptoms, far more than real psychiatric patients endorse, one can conclude that there is a strong potential for exaggeration or malingering.
Another procedure is the performance validity test. These tests appear to be very challenging tests of mental ability, but in fact are very easy, so easy that even individuals who are severely brain injured usually do well on them. If a patient scores much worse than even a severely brain injured patient, one can conclude that he is likely exaggerating. Even more powerfully, if a patient scores below chance on one of these tests, that is, if they score so poorly that they choose the wrong answer more often than would be expected from chance alone, one can conclude within a reasonable degree of certainty or much greater– 90%, 95%, 99% — that they are consciously malingering.
Other tests rely upon known psychological principles. For example, patients can be expected to generally perform better on easier questions than harder ones. If the questions are randomly mixed up, and the patient doesn’t show the typical pattern of doing better on easier questions, something is wrong. Patients with memory loss due to traumatic brain injury almost invariably show a particular pattern of memory deficits. If the pattern is awry, one can conclude that a real traumatic brain injury is unlikely.
Application of these tests, and others like them, has demonstrated that there is a huge malingering problem among plaintiffs in disability, personal injury, worker’s compensation, and employment harassment cases. The best research suggests that between 40% and 60% of plaintiffs engage in substantial exaggeration if not outright malingering of their conditions. The author has evaluated 60 injured government contractors from Iraq and Afghanistan; of these, 55% failed malingering tests. The overall rate of malingering test failure in my forensic practice is 42%.
On the other hand, failure of a malingering test does not in and of itself reflect malingering. There are conditions that can mimic malingering. For example, I once saw a young man who was schizophrenic and involved in a serious criminal matter. I administered a malingering test to him, which he failed. Yet he was unmistakably schizophrenic, delusional, and hallucinating. After several hours of working with him and gaining his trust, I asked him why he had earlier answered the malingering test questions the way he had. His entirely believable reply was: “The voice told me that I should.” Other patients can fail malingering testing because they are truly profoundly impaired. The expert must carefully examine all the possibilities while interpreting the test data. Great care and skill are needed; it is not just a matter of a single test score.
In sum, when the existence or severity of a mental illness is at stake in a case, expert testimony about malingering testing can be definitive. What better way to show that your plaintiff is presenting herself honestly and openly, than by showing that she has passed sophisticated tests designed to identify exaggeration and magnification? Or what better way to impeach a claimant’s symptom report, than to show that he systematically and abysmally failed tests of malingering?