Identifying Faked or Exaggerated Symptoms of Emotional Distress in Personal Injury Suits

 

	Medicolegal context of presentation (e.g. the person is referred by an attorney to the clinician for examination)
	Marked discrepancy between the person's claimed stress or disability and the objective findings
	Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen
	The presence of Antisocial Personality Disorder

Antisocial Personality Disorder (in the past referred to as "psychopathy" or "sociopathy") can raise concern about the possibility of malingering since deceitfulness is identified in the DSM-IV as a cardinal feature of this disorder.

There is another class of disorders that can be confused with malingering: Factitious Disorders. A Factitious Disorder is also characterized by "the intentional production of physical or psychological signs or symptoms" , but differs from malingering in that the motivation for the symptom production in Factitious Disorder is to assume the sick role rather than to obtain the external incentives which are the hallmark of malingering. A factitious disorder may involve a self-induced injury and tends to imply more genuine psychopathology than malingering since the "secondary gain" (external incentive) is absent or much less noticeable. Overholser traces the historical development of factitious disorder and suggests some ways of differentiating malingering and factitious disorders. He reports, for example, that most malingerers are seen on an outpatient basis while factitious disorder is often seen on an inpatient service, that malingerers seem "agreeable" while those with factitious illness are "belligerent" and that the primary source of motivation is "external" in malingerers and "internal" in those with factitious disorder. Overholser notes that another writer, Asher, first suggested this syndrome and named it in honor of Baron Hieronymus Karl Friederich von Munchausen, an 18th century nobleman noted for his ability to tell exaggerated stories. In 1968, Spiro defined a broader category of problems as "factitious illness", which includes Munchausen's Syndrome.

How often do plaintiffs fake or exaggerate emotional distress in personal injury suits. This figure is not known with certainty. Mental health professionals who study faking offer widely varying estimates of how often malingering occurs. In an article appearing in the journal OCCUPATIONAL HEALTH AND SAFETY, W. Donald Ross cites a Washington state survey which revealed that only one of one million claims were actually self-inflicted injuries being masqueraded as work injuries. He concluded that "True malingering is rare". G. G. Hay, in his review of the simulation of mental illness , estimated that five out of about 12,000 admissions to a South Manchester hospital were believed to be faking a psychosis, a rate of less than 1/20th of a percent. In a more recent study, Paul Lees-Haley found that only one of 64 personal injury claimants scored in the significant range on two different measures of malingering and he remarked upon "the large number of forensic patients who scored lower than one might imagine (on indices of faking) from a population that often is characterized as disturbed, making a cry for help, or exaggerating emotional distress" . Simon, in his 1995 book Posttraumatic Stress Disorder in Litigation, states that "The incidence of malingered psychiatric symptoms after injury is unknown". He cites estimates of occurrence of malingering by other experts that range from 1% to over 50%. Simon goes on to differentiate "pure malingering-the feigning of disease when it does not exist at all" from "partial malingering-the conscious exaggeration of existing symptoms or the fraudulent allegation that prior genuine symptoms are still present".

Various strategies have been suggested as aids in the detection of malingering. Huddleston, for example, recommended a technique to use with military men which involved depriving the soldier of books, tobacco and friends since this would often result in an improvement of faked symptoms. Other authors have suggested studying the eyes for signs of shiftiness or "wavering" In more recent times, drugs have been utilized to attempt to identify the faker. But, studies have shown that subjects can continue to deceive during amobarbital interviews. And, according to Hall and Pritchard, a hypnotic state does not guarantee against faking either.

Modern psychology offers some behavioral cues which might be useful in detecting malingering. Freud suggested that liars make more "slips of the tongue" than those telling the truth. Others have suggested that liars blink their eyes more often than truth tellers, that liars' pupils are more dilated and DePaulo has said that nervous people and introverts are less successful as liars. But DePaulo goes on to say that many of these behaviors, which appear to be associated with level of anxiety, are not consistently associated with faking.

Several clinical strategies have been employed in an attempt to differentiate between the individual with a genuine psychological disorder and one who is faking or malingering. Among these are observation or videotaping of the suspected malingerer, a technique apparently employed by insurance companies, interviews without using psychological tests, a method sometimes used by psychiatrists, and formal psychological testing. Schretlen, in his excellent review of the use of psychological tests to identify malingering of pychological disorders, concludes that research supports psychological testing as a method of differentiating between genuine and feigned mental problems but research demonstrating that the psychiatric interview by itself can be used in this way is lacking.

Many psychological tests have been examined with respect to their ability to help identify malingering. Schretlen, in the same review article, mentions a few including the MMPI-2, the Rorschach test and the Bender Gestalt test. But there is controversy about the reliability and validity of the Rorschach and Bender Gestalt and some investigators feel this severely limits their usefulness in forensic settings.

The Minnesota Multiphasic Personality Inventory (MMPI-2) is "the most widely used and researched objective personality inventory". It may also be the psychological test most often used in the assessment of malingering of mental disorders. The MMPI, originally developed in the early 1940s by Hathaway and McKinley, was re-standardized in 1989, re-named the MMPI-2. The MMPI-2 consists of 567 true-false items which are grouped into Validity scales, which measure "test-taking attitudes", and Clinical scales which measure various aspects of personality and psychological symptoms. It has been referred to as the "gold standard" in the psychometric assessment of malingering.

The MMPI/MMPI-2 has been used in several different ways to detect malingering. Early on, Gough looked at ways the validity scales of the MMPI could be utilized to identify malingering. He reported in his 1950 study that the raw score on Validity Scale F minus the raw score on Validity Scale K (F-K) was quite useful in detecting "overreporting" profiles, those MMPI profiles in which examinees exaggerated their mental problems. Many studies of the usefulness of F minus K as a means of detecting malingering have subsequently been done and the consensus seems to be that this formula is accurate in distinguishing faked from normal profiles but is less accurate in distinguishing faked profiles from profiles of examinees with actual mental illness (Schretlen, 1988). Research continues into the best way to use the F minus K formula to measure faking.

Validity Scale F by itself has also been used to detect malingering. Berry and Baer looked at the combined data from more than 25 studies which examined how well MMPI validity scales could detect overreporting of psychological symptoms. The best indicator of faking was the F scale; F minus K was somewhat less effective. But investigators learned that random reporting (in addition to faking and real mental problems), also had the effect of elevating the F scale. A method was needed for differentiating between random responding and exaggeration of symptoms. With the re-standardization of the MMPI known as the "MMPI-2", VRIN (variable response inconsistency) and TRIN (true response inconsistency) were introduced. VRIN consists of special MMPI-2 items which can be used to rule out random responding. TRIN can be used to identify a different type of inconsistent responding.

As promising as some of these MMPI-2 Validity Scales are in the detection of malingered symptoms of mental disorders, efforts continue to improve their predictive power. For example, since much of the research database supporting the use of the MMPI-2 in personal injury work comes from scientific studies in medical and mental health outpatient settings, and from actual forensic assessments, more MMPI-2 data is needed from scientific studies of actual personal injury litigants. Research also continues into techniques that can improve the forensic psychologist's ability to understand personal injury litigants. For example, Paul Lees-Haley, who often publishes research studies of malingering, described a "credibility scale" for assessing personal injury claimants . Lees-Haley also combined existing MMPI-2 test items into a new "fake bad" scale for use, specifically, with personal injury claimants.

CONCLUSIONS: It is safe to say there is no method of detecting malingering of emotional distress symptoms that is 100% accurate in all settings. Many forensic psychologists believe, and I agree, that the best procedure currently available for identifying faked symptoms of emotional distress in legal settings is to use multiple sources of information. Good psychological practice requires that these would include behavioral observations, psychodiagnostic interviews, review of medical and psychological records, performance data (such as school grades and work performance reviews) and psychological test procedures specifically designed to measure faking. Gathering the data needed for this kind of evaluation will ordinarily require several meetings between the forensic psychologist and the lawyer's client. The Validity scales of the MMPI-2 can be very powerful tools for assessing the likelihood of faking in personal injury settings. But MMPI-2 test results must be interpreted in combination with various other forms of data when making such important judgments.