A Guide to Identifying Exaggerated or Faked Physical Symptoms in Litigation

Introduction:

"Malingering" usually refers to the situation in which an injured person, motivated by external incentives such as money damages, purposely exaggerates or fakes psychological symptoms. However, there is a second type of malingering in which an individual exaggerates or fakes physical symptoms or pain and simultaneously minimizes or denies psychological symptoms in order to enhance the credibility of the exaggerated physical complaints. This article will discuss the second type of malingering.

Composite Case Study:

“Bob”, a 35 year old ironworker was injured at work when he tripped on an I-beam and fell. He was taken by ambulance to a local hospital and was evaluated in the Emergency Room. He reportedly sustained significant physical injuries but he was treated and released without being admitted. He was given discharge diagnoses of severe lacerations on his arms and legs and neck sprain. He did not return to work after he was injured and filed a Worker's Compensation claim. His physical injuries healed quite well over the next two months and his doctors expected him to make a full recovery. Yet, two years after the accident, he continued to complain of extreme, disabling neck pain which prevented him from working and from participating in hobbies and interests. Physicians who examined him several months after the accident were unable to find any medical explanation for chronic pain.

Malingering:

Because large rewards are potentially available to employees in Worker's Compensation claims, some workers may be motivated to produce false or greatly exaggerated physical or psychological symptoms in order to obtain money damages and to avoid work. This behavior, referred to as “malingering”, is intuitively understood as the deliberate attempt to appear sicker physically or psychologically than the objective findings would suggest. Perhaps less intuitive is the situation in which a plaintiff may wish to appear less psychologically disturbed than is the case. In a Worker's Compensation claim involving an allegation of chronic pain, appearing very mentally healthy can be motivated by the desire to enhance the credibility of exaggerated physical symptoms. Workers who are exaggerating or faking physical symptoms may be identified by psychological profiles which possess the following elements:

1. Claims of moral excellence
2. Self-portrayal as completely honest and above reproach
3. Unusually high scores on tests that measure frequency, duration and intensity of physical symptoms

Rationale for special psychological testing:

David Schretlen, who evaluated the ability of 15 psychological tests to detect malingering, has noted there is no research proving that interview by itself can reliably identify malingering. In an article he published in Clinical Psychology Review, Schretlen stated: "This does not mean that astute clinicians cannot detect malingering by talking with the patient. But until controlled research validates this application of the psychiatric interview, it is probably indefensible to render expert testimony regarding the likelihood of malingering unless one has psychological test data that bear on the question".¹ Even more problematic, Lees-Haley has shown how surprisingly easy it is for a litigant, motivated to exaggerate or fake, to bamboozle some commonly administered psychological tests^.2

The What and Why of the MMPI:

The Minnesota Multiphasic Personality Inventory (MMPI-2), a 567-item true-false test, is nearly unique among psychological tests because it contains built in “validity scales” that have been scientifically demonstrated to be useful in identifying various forms of unusual responding. Since different scales on the MMPI-2 are comprised of different numbers of test items, a way was needed to standardize scores for ease of comparison and interpretation among the various scales. Thus, scores on each scale are mathematically transformed into “T-Scores”. The average T-Score is 50 while scores above 65T fall within the abnormal range and have a meaning similar to that of a body temperature above 98.6°. The MMPI-2 scales that can identify exaggerated or faked psychological symptoms are called "F" and FB". There is ample data showing that F and FB can reliably identify exaggerated or faked psychological symptoms. But, the tendency to exaggerate psychological symptoms is not the focus of this article. The tendency to deny psychological symptoms is the focus of this article and the two MMPI-2 scales that are used to identify a tendency to minimize or deny psychological symptoms are called “L” and “K”.

Scale L:

Scale L on the MMPI-2 consists of 15 items. These items are often thought to be "obvious" and present an opportunity for the test-taker to easily and deliberately portray himself or herself as perfectly mentally healthy by responding to each item in a certain direction. The following four statements, though not actual MMPI-2 test items, are similar to the kinds of items that actually comprise scale L.

One (1) point is added to the score for Scale L each time the test-taker answers “false” to items similar to those above. Scores on this scale can range from 0 to 15. Research with groups of normal people has shown that the average score for a male on Scale L is 3.53 out of 15 and for females is 3.56 out of 15. These Raw Scores translate into T-scores of about 50. Individuals who obtain scores above 60T are "defensive" and are presenting themselves as unusually virtuous. Scores above 65T are extremely elevated and may invalidate the test because they indicate that the test-taker is purposely attempting to deceive others.

There is a substantial published scientific literature examining the ability of Scale L to determine if a test subject is claiming unlikely levels of moral excellence and honesty. In a study published in the Journal of Personality Assessment, John Graham³ and others asked 56 students (27 men and 29 women) to take the MMPI-2 twice: once with standard instructions and once with instructions to present a very positive impression of themselves and “to try to imagine that you are graduating from college, are being assessed for a highly desirable job, and for that reason are trying to appear very well adjusted”. On Validity Scale L, subjects obtained the following average T-scores (50 is an average score while scores above 65 are extremely elevated and invalidate the whole test):

These results clearly indicate that male and female subjects who are given standard instructions for taking the MMPI-2 obtain scores that are very close to average (50) on Validity Scale L. Subjects given the “fake-good” instructions earn significantly higher scores which indicate an extreme tendency to claim unusual levels of moral excellence and honesty. Scale L is successful in identifying individuals who are trying to appear to be free of psychological symptoms.

Scale K:

Scale K consists of 30 items. The average score on Scale K for normal men is 15.30 out of 30 and for normal women the average score is 15.03 out of 30. As with Scale L, raw scores on Scale K are transformed into T-scores. Scores above 65T on Scale K (raw scores above 22) may indicate such severe deceptiveness on the part of the test-taker that the MMPI-2 is invalidated and cannot be interpreted. The items comprising Scale K tend to be more subtle than L Scale items so it is less likely that a "defensive" person will understand the rationale of the K items and will be less likely to be able to avoid detection. In this sense, K is a measure of more sophisticated "defensiveness" and seems to assess "unconscious" attempts to portray oneself as perfectly honest and morally excellent. The following three statements, though not actual MMPI-2 items, are similar to the kinds of items comprising scale K; each "false" response given by the test-taker to these questions will add 1 point to the K Scale:

Graham and his co-researchers found the following values for Scale K when students were asked to take the MMPI-2 under "standard" and "fake-good" instructions:

These results indicate that, given standard instructions for the test, male and female subjects obtain scores very close to average (50T) on Scale K, a measure of defensiveness but when the same subjects take the test under “fake-good” conditions they earn scores that are significantly higher indicating a strong tendency to portray themselves as very honest and morally excellent.

How Accurate are L and K?:

Performing additional calculations on their data, Graham and his colleagues determined that the Scale L correctly classified 93% of the fake-good profiles of women, while for men Scale L correctly classified 96% of the fake-good profiles. They also found that Scale K correctly classified 97% of the fake-good profiles of women, while for men, Scale K correctly classified 93% of the fake-good profiles. These findings indicate that MMPI-2 Validity Scales L and K worked well to separate “fake-good” profiles from honest profiles for both men and women.

Defensive Responding Profile:

Butcher and Harlow (1987)⁴ noted that “Individuals who wish to create an impression of having serious physical problems tend to produce MMPI profiles that have some common features” (pg 142) including the following:

1. Elevations on Validity Scales L or K or both suggesting exaggerated personal virtue and honesty with the apparent motivation to appear beyond reproach so that exaggerated claims of pain or physical symptoms will appear more credible
2. Elevations on Clinical Scales: An MMPI-2 clinical profile characterized by exaggerated endorsement of items referring to physical symptoms. Exaggerated endorsement of physical symptoms can take several forms:

“Bob’s” MMPI-2 Profile:

Bob's scores on the basic MMPI-2 scales are as follows:

Bob’s MMPI-2 Validity Scale profile indicates that he is claiming very unusual honesty and virtue (high scores on L & K) while his symptom scales indicate that he is reporting extreme and chronic pain that disables him (high scores on Scales 1 & 3). His obvious attempt to portray himself as free from all human frailties, even those human weaknesses to which most people will admit, is apparently motivated by his desire to convince others of the credibility of his exaggerated physical complaints).

DSM-IV Criteria of Malingering:

“Malingering” is the term psychologists and other mental health professionals use to describe “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution or obtaining drugs” ⁵. The individual engaging in malingering is thought to be consciously aware that he or she is exaggerating or minimizing symptoms.

There should be a strong suspicion of malingering if any two or more of the following are identified⁶:

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

Confirmatory data:

Various pieces of data, obtained during interviews of the injured worker by the defense's psychological expert, and from a review of the medical records, were consistent with DSM-IV criteria of malingering and indicate that "Bob" was most likely exaggerating or faking his chronic pain complaint. The following are some examples of these findings:

(Consistent with Malingering criterion #1:“medicolegal presentation”)

(Consistent with Malingering criterion #2: marked discrepancy)

(Consistent with Malingering criterion #3: lack of cooperation)

Conclusions:

Pain that is exaggerated or faked within the context of litigation can often be identified by a combination of careful history-taking, scrutiny of medical records and personality evaluation utilizing specialized psychological tests.

Assembling strong evidence that identifies pain and psychological symptoms as exaggerated or faked will significantly reduce the credibility of such claims.