Malingering Psychiatric Disorders and Cognitive Impairment in Personal Injury Settings
Published in For The Defense (publication of the Defense Research Institute), April issue, 2005

The rate of malingering among personal injury claimants is not known with any precision, with published estimates ranging from 20-59%.¹ Even these figures could be underestimates, since those who are successful in their deception would not be counted. There is little evidence that clinicians-unaided by specialized tests-can reliably distinguish malingerers from persons actually suffering from a mental disease or defect. One recent study found that psychiatrists working in a state forensic facility, relying on interviews and file data, failed to identify 50 percent of malingerers detected through specialized testing.² The misidentification rate among clinicians in non-forensic settings who provide treatment (as opposed to assessment) is likely to be much higher. Another study found that six professional actors, trained to simulate PTSD, were uniformly successful in fooling doctoral clinical psychology students, who were described as highly experienced in evaluating motor vehicle crash survivors, until the clinicians were appraised that malingering had occurred. Even then, only three simulators were detected and three actual patients were misidentified.³

Professionals have sometimes seemed indifferent to the prospect of malingering, often assuming that a person presenting for treatment should be taken at face value. This is true even among some researchers who have investigated techniques to detect malingered PTSD. Consider this quote from one such therapist/researcher: "Despite the sometimes pressing need to acquire assessment data from the victim, the ultimate issue is the victim's continuing well-being and the importance of avoiding any further harm."⁴

The American Psychiatric Association's Diagnostic and Statistical Manual clearly states, "Malingering should be ruled out in those situations in which financial remuneration, benefit eligibility, and forensic determinations play a role."⁵ However, clinicians may not know that a patient has such motivations, often do not suspect the possibility of malingering, and typically lack the training or tools to assess for malingering even if they suspect it. Not surprisingly, they rarely find it. I am not aware of any published study that examines how treating professionals determine what external motivations may be present for a patient's presentation.

In contrast to treating professionals, forensic psychologists consider malingering assessment a crucial element of their craft and routinely test for it. Because this potentially places the examiner in opposition to the examinee's interests, evaluation in forensic settings is viewed as a professional specialty that is incompatible with providing treatment.⁶ Other differences between forensic evaluators and the treating clinicians are summarized in Table 1. ⁷

Differences Between Treatment and Forensic Roles in Psychology

	Therapists	Forensic Examiners
Who is the client?	Patient	Attorney or the court
Goals	Provide treatment and support	Objectively evaluate a defendant or claimant
Data	Accept what the client says	Corroborate examinee's statements with collateral information
Emphasis	Treatment, "helping"	Assessment of psycholegal issue at stake
Trust	Assume basic honesty	Assess for malingering or attempts to create a positive impression
Accountability	Anticipate little challenge to conclusions, diagnoses	Anticipate cross examination, consider alternative hypotheses, explanations
Privilege	Governed by therapist-client privilege	Governed by attorney-client privilege, if any
Knowledge of legal issues	May be unaware of legal standards, rules of evidence	Familiar with case law governing the issue to be addressed, Daubert and FRE standards for evidence
Attitude	Avoid court appearances	Accept legal proceedings as part of their work; develop testimony skills

This article will review the issues pertaining to malingering in a personal injury context, discuss the best validated tests and techniques available, and examine the three syndromes where defense counsel may face psychiatric malingering: PTSD, depression, and head injury.

Assessment
Skepticism is an essential quality of a forensic examiner, but it should never be a substitute for data. Many treating professionals lack a critical mindset while some forensic examiners become over-zealous. People with real psychiatric conditions may exaggerate. And the presence of feigning or poor effort cannot automatically be assumed to be malingering, since motivations other than material gain may be present. For example, in factitious disorders, persons adopt a sick role not for monetary benefits, but because it results in care-taking and sympathy from medical personnel or family members: they like the way people treat them when people think they are sick or hurt.

Four sources of information are important in determining the possibility of feigning: 1) Semi-structured interviews that cover various aspects of the evaluatee's life; 2) the examiner's observations of the examinee's manner, both during the interview and outside of it, 3) specialized psychological testing, and 4) collateral information from family members, treatment providers, private investigators, and witnesses to the alleged trauma.

Interviews and Observations
Interviews are important to identify collateral sources and to obtain a gauge of the person's credibility. Credibility issues may also arise in the forms of inconsistencies or the manner in which information is relayed. Psychologists are increasingly identifying behavioral indications of deceit, and it appears possible to train people to be reasonably good lie detectors.⁸ Some of the best evidence of malingering occurs when the examinee's demeanor changes as he enters or leaves the examination area. In a criminal context, defendants can often be seen talking in an animated manner with peers in their jail tank before being called for the assessment. Yet, when they meet the examiner at the door, they may cross their eyes and walk past the examiner as if blind or in a stupor.

Psychological Testing
Formal, specialized testing is increasingly recognized as important in cases involving claimed psychiatric or cognitive impairment for two reasons: effectiveness and accountability. As indicated earlier, there is reason to doubt the ability of clinicians to separate false from legitimate claims. Further, it is unclear if clinical judgment and unstandardized tests are sufficiently reliable to be accepted under FRE and Daubert/Kuhmo. Almost by definition, neither a clinician's judgment nor unstandarized test results will be subject to peer review and rates of error will be unknown.

Feigning of Psychiatric Symptoms
Most of the traditional psychological tests, such as IQ tests and most projective tests, are of little use in assessing malingering.⁹ There is one study that suggests the Rorschach can distinguish those that malingering combat-related PTSD¹⁰, despite the acrimonious debate about its general usefulness. However, the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) is useful and has numerous indices to detect inconsistent responding, defensiveness, or exaggeration/feigning (see Table 2). These scales rely on several strategies, including general over-reporting of symptoms, endorsement of unusual symptoms, or endorsing stereotypic but false symptoms. Scales from the MMPI have shown the greatest resolution of any test or index in separating simulators from actual patients. Unfortunately, some of the traditional and most sensitive indices (such as the F scale) perform quite differently across different settings and populations, so that the cut scores that are most effective at separating feigners from honest responders have varied greatly from study to study.¹¹ However, a recent meta-analysis identified two scales (F(p) and Ds) that both discriminate well and show consistent cut scores across populations and studies.¹²

Table 2
Some Major MMPI-2 Indexes Used to Detect Malingering

Index	Description
F	(Infrequency Scale) Items that are rarely endorsed by "normal" people who are not psychiatric patients. May be elevated by careless responding or intentional faking of psychiatric disorder, especially psychosis.
F(b)	Same as F scale, but for items on the back side of the answer sheet. Helps identify protocols where the subject loses interest half way through and fills out the rest of the test randomly.
F(p)	Items that are rarely endorsed by psychiatric patients - a more specific version of F; includes fewer legitimate symptoms of psychiatric illness than F.
K	A measure of defensiveness, possibly characterlogical (not due to impression management) - inversely related to malingering.
F-K	The raw score of K subtracted from the raw score of F.
O-S	The sum of "obvious" items ("I hear voices") minus the sum of subtle items ("I think Washington was great than Lincoln").
Ds	(Dissimulation Scale) Items that reflect erroneous stereotypes of mental illness.
FBS	(Fake Bad Scale) Designed to identify faking in personal injury claimants; its items include reports of bodily complaints combined with a portrayal of oneself as an honest and virtuous person.
Md	(Malingered depression) Designed to distinguish persons who are legitimately depressed from those feigning, even when coached.

Two new generation tests compete with the venerable MMPI in clinical settings. The Personality Assessment Inventory and Millon Clinical Multiaxal Inventories (I-III) have validity scales, but these appear less effective and are not as well validated as those for the MMPI and should not be relied upon in personal injury contexts.¹³ The Structured Inventory of Reported Symptoms (SIRS) is a structured interview, and is considered the gold standard for detecting malingering of psychosis, but has not been thoroughly researched for the conditions of interest in a personal injury setting.

Malingering of Cognitive Impairment
In the early days of neuropsychological testing, it was believed malingerers could not produce a credible profile on the numerous tests that make up a typical assessment battery. However, this belief was shattered in 1978, when a classic study found neuropsychologists unable to identify malingerers at a level that much exceeded chance.¹⁴ A subsequent study found not one in 42 neuropsychologists identified profiles of children instructed to malinger, and that the clinicians expressed high confidence in their erroneous findings.¹⁵ Since these embarrassments, neuropsychology has developed many procedures to detect cognitive malingering. Nonetheless, clinicians outside of Neuropsychology may not use them regularly, particularly if they lack training in testing.

The impact of feigning or poor effort can be dramatic: A recent study found that level of effort (as gauged by a test designed for this purpose) accounted for fully half of the variance in neuropsychological test scores, eclipsing the effect of injury severity:¹⁶ Persons who put forth good effort scored better than those who didn't regardless of the seriousness of their injury. Another study found effort level accounted for four and half times as much variance as actual injury. ¹⁷

Measures of cognitive malingering have been around for years. Many rely on the fact that feigners produce implausibly low scores on easy tasks. The Rey 15 Item Test consists of a 3 X 5 array of numbers and letters in sequence. Recent studies have shown that this test lacks both sensitivity (ability to detect malingerers) and specificity (fails legitimate patients), and its continued popularity and acceptance¹⁸ seem unwarranted. It may be most useful when the examinee produces highly unusual responses that are not found in legitimate neuropsychiatric patients.

Another procedure is the Dot Counting Test, which examines the examinee's performance in counting both organized and disorganized groups of dots. Optimal scoring rules can produce about 80 percent correct classification.

Two more recent tests represent the state of the art. The Test of Memory Malingering (TOMM) is widely respected¹⁹ and appears to be unaffected by depression or other psychiatric conditions. However, two limitations have become apparent. The usual cut score is too high for persons with dementia, and some will be falsely identified as feigning. Secondly, the TOMM may be substantially less sensitive than its rival, the Word Memory Test (WMT). A recent study found the WMT identified 37 percent of a population involved in litigation as feigning, while the TOMM identified only 12 percent.²⁰ The WMT authors have shown the WMT to be very easy and to produce very minimal false positives among a diverse range of groups, including the brain injured, depressed, and children. ²¹ Ironically, samples of normals actually produce higher rates of false positives-apparently because some don't put forth good effort. The WMT is explicitly billed as a measure of suboptimal effort, which is broader than the construct of malingering (which connotes intentional failure). Lastly, the WMT appears resistant to detection as a malingering measure, and those instructed to try to beat it have been unable to do so.²²

Collateral Sources
Collateral sources are crucial in assessing both malingering and the actual level of functioning or impairment. Traditionally, clinicians have relied primarily on the patient's self-report, as objective truth was of less concern than the patient's view of the situation. However, such sources are essential for forensic psychological assessment.²³ These may include medical, school, financial and employment records, family members, supervisors, friends, employers or co-workers, and observations outside of the examination room.

Like examinees, collateral sources cannot be taken at face value. Family members may lie to assist the claimant's malingering. Treatment providers may be manipulated to provide credible, sincere, but false testimony about the extent of the claimant's mental impairment. Records can be incomplete and even wrong. In forensic assessment, virtually no source of information should be assumed reliable.

If a claimant is malingering, there will be a powerful inclination let one's guard down when not being evaluated. The more impairment a claimant displays, the greater the burden to keep up the act over time and different settings. Observations from outside of the clinical examination will remain an extremely valuable data source regardless of advances in forensic psychological assessment.

Malingering Specific Syndromes
PTSD
The symptoms of PTSD have been widely publicized. Following the Vietnam War, the government printed flyers to help veterans recognize characteristic symptoms and prompt them to apply for deserved benefits. Among the symptoms of PTSD intended to be listed was "survivor's guilt."²⁴ However, a printing error in one region resulted a number of veterans showing up to file their claims carrying their "survivor's quilt." Clearly, some impression management was at work. A number of veterans claiming PTSD have been found to never have been in combat, or in some cases, never even in the armed services.²⁵

Vietnam veterans were the first group that received much attention regarding PTSD. More recently, a distinct literature has developed for survivors of motor vehicle accidents.²⁶ Like many treating clinicians, these authors appear overly trusting about the honesty of their patients: they discount MMPI-2 findings because they believe they may falsely label their patients as exaggerating and do not collect medical records - although they advise others to do so.²⁷

Almost from the beginning, observers have commented on the tendency of PTSD claimants to produce evaluated scores on MMPI validity indices. At first, many viewed this as a function of the severity of the disorder and the variety of its symptoms. Over time, however, others commented that the extremely pathological test scores observed were inconsistent with the outpatient status of most PTSD patients, and that the disability rate far exceeded that seen in previous wars or tragedies.²⁸ In the Aleutian Enterprise sinking, 86% of survivors reported PTSD symptoms, far exceeding the more typical figures of 25-40% in similar tragedies. Post litigation interviews with these claimants found that most had engaged in communication with other claimants and were coached by attorneys.²⁹

The literature on PTSD is badly compromised by the failure of researchers to rigorously screen for malingering among presenting patients. This failure potentially contaminates much of what is known about the disorder. For example, one correlate of PTSD is antisocial personality disorder, which denotes a personality style marked by deception, exploitation, and substance abuse. Authors often refer to antisocial behavior and drug use as sequali of PTSD without making any serious attempt to determine if such traits were present before the alleged injury. Further, antisocial personality disorder is one of four DSM-IV indicators of potential malingering. The failure to consider malingering has resulted in a published recommendation that journal editors demand disclosure of the litigation status of study participants so that those with obvious incentives to exaggerate or malinger can be identified and, at a minimum, be analyzed separately from those without such motivations.³⁰ Some general indicators of possible PTSD malingering are listed in Table 3. With the exception of "unvarying, repetitive dreams, these apply to other disorders as well.

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