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Manipulation of malingering tests in personal injury lawsuits

Manipulation of malingering tests in personal injury lawsuits

“Malingering” is commonly defined as exaggerating or faking symptoms for secondary gain (e.g., personal injury compensation or settlement) or to avoid work or some other obligation. If you are asked to submit to an examination by a defense doctor (that is, an examination arranged and paid for by the defendant or the defendant’s insurance company), then you may be given one or more “malingering” tests.

Three types of malingering tests

Effort tests

Effort tests require the patient to use cognitive skills – that is, mental skills used in acquiring knowledge, such as memory and concentration. The defense theory underlying these tests is that if you perform too poorly, especially if you do worse than chance, then you must know the correct answer and be intentionally answering the questions incorrectly, so as to appear impaired.

Pain scales

Pain scales are “malingering tests” that ask the patient to describe his pain and/or function level. The defense theory underlying these tests is that if you endorse too many pain symptoms, then you must be malingering (faking); if you endorse too few, then there must be nothing wrong with you.

Symptom selection test

These tests ask if the patient has various psychological symptoms. If you claim to have too many unusual psychological symptoms—symptoms not typically associated with various mental illnesses—then the defense will argue that you are claiming symptoms that are not legitimate; therefore, you are malingering.

Common problems with malingering tests

If the defendant in your injury lawsuit claims that you are malingering based on your performance on a malingering test, your personal injury attorney should first talk with you about how the test was administered, and then review your test data, keeping in mind the following potential issues:

Potential problems with testing method and protocol

Gives clues

Some defense doctors will provide significant clues to the patient, and then opine that a good score means no brain damage (and, therefore, the patient is malingering). For example, the doctor may ask the patient to name all the presidents of the United States, starting with the current and working backwards, and then help the patient by asking, “Who was the peanut farmer from Georgia?”

Gives an incomplete test

Some defense medical doctors will give only part of a test or will skip questions on a test. Sometimes, the doctor will not give the entire test battery, but will, instead, administer only certain subtests within the standardized battery.
Manipulates the timing of the test
What time of day did you take the malingering test? Because malingering tests measure effort and cognitive skills, it may be unfair, at best, to give a malingering test right before or after lunch, or at the end of two days of grueling testing when the patient is sick of the whole thing.

Interferes with the testing

Did the defense doctor disrupt your concentration during the test by, for example, raising his voice at you, or refusing to allow you any breaks, or talking on a cell phone where you could overhear, or frequently coming in and out of the room?

Uses old tests

Were you given the most current version of a particular test? If not, then you may have an artificially high score. I.Q. scores tend to increase from one generation to the next. Consequently, if the personal injury defense doctor administers an older version of a test, most patients will perform better because their test is being compared to an older, less intelligent sample.

Potential problems with scoring the tests

Not scoring the test or only scoring a portion of it

Some defense doctors will give a malingering test, but not score it or only score part if it.

Scoring incorrect data

Sometimes doctors input the wrong information. For example, the patient may have scored out as “not brain- injured” in concentration tests, but the defense doctor input the wrong birth date, so the patient was being compared to much older and feebler individuals. Sometimes, doctors just add up the score incorrectly.

Does not have tests computer-scored

A computer-generated printout of malingering test scores may offer conclusions, such as “Patient may be depressed,” or “Patient appears to answer questions in honest and straightforward manner.” The defense doctor who does not want those conclusions to appear in his report may hand-score the tests.

Gives a test with no formal scoring manual

If a test has no formal scoring manual, then it is not a true test because the doctor can claim the test means anything he says it means.

Potential problems with reporting and interpreting test results

Claims malingering based on a test that is not a malingering test

If the defense doctor in your personal injury or accident lawsuit claims you are malingering based on a test that was not created or designed for that purpose and has no scoring manual permitting that interpretation, then this is a misleading conclusion.

Fails to provide actual percentage scores, but refers to “Z” scores or “T” scores

Psychological testing and test results can be broken down into percentages. For example, a patient may fall within the bottom five-percent on a particular test, indicating clear impairment. However the defense doctor may report that score as a “Z” score. A “Z” score is a “[s]tatistical measure that quantifies the distance (measured in standard deviations) a data point is from the mean of a data set.” That does not mean much to most personal injury lawyers (or to most jurors), but learning that the patient scored in the bottom five-percent most definitely does.

Claims “borderline flunking” or “borderline passing”

There is no such thing as “borderline flunking.” Either you passed or you didn’t.

Ignores the “retest” effect

Consider this situation: The defense doctor claims the patient is not brain-injured because when the doctor administered a test previously administered by the patient’s personal doctor, the patient tested out much better. Thus, the defense doctor concludes the patient is either malingering or is cured. Wrong on both counts. The retest effect accounts for the fact that many tests, when administered twice, actually result in the patient getting a higher score the second time because he remembers stories read to him the first time the test was administered. This does not mean the patient is better. It is simply a factor of the retest effect.

Ignores the treating physician’s diagnosis, record of treatment

The defense doctor may claim the patient’s condition exceeds what one would expect from the physical findings. In some cases, however, this requires the defense doctor to ignore the majority of the evidence, starting with the treating physician. Instead, the defense doctor will rely primarily on the reports of other defense experts to claim that the patient does not have a real physical condition. This practice is called “confirmatory bias,” which exists when an individual ignores all data and information that is contrary to the conclusion he wishes to reach.

Armed with knowledge of these potential issues with malingering tests, your personal injury attorney can investigate any allegation that you are malingering by reviewing the raw test data, talking with you, deposing the defense doctor (i.e., (taking sworn testimony under oath), and, if necessary, cross-examining the doctor at the trial of your personal injury case.

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