An Introduction for Attorneys

Introduction:

According to Ziskin¹, “The accuracy of information obtained from a litigant is frequently the most critical element in the case.” In a treatment practice, psychologists, psychiatrists and social workers sometimes provide psychotherapy treatment services to individuals complaining of psychological symptoms. Patients seeking psychotherapy usually have little or no motivation to present themselves as either more or less psychologically impaired than they really are. Therefore, the treatment provider has no need to assess a patient for exaggeration or faking of psychological symptoms. However, when a mental health expert conducts an evaluation of a litigant claiming psychological damages, there is often a strong external incentive, frequently in the form of money damages or avoidance of responsibilities, which can sometimes motivate a litigant to magnify psychological symptoms in order to obtain those incentives.

This article will highlight some issues that can arise when mental health professionals evaluate litigants for exaggerated or faked symptoms of depression or anxiety using an interview alone (without psychological tests). This discussion is relevant to the assessment of exaggeration or faking in personal injury, worker’s compensation, disability and other civil claims involving emotional distress. This article does not address malingered “cognitive” symptoms such as memory deficits, attention problems or impairment of concentration, nor is it relevant to the assessment of exaggeration or faking by criminal convicts or defendants charged with criminal offenses.

Symptoms of depression occur in a variety of mental disorders. Some disorders in which depression is salient include Major Depressive Disorder, Bipolar Disorder, Dysthymic Disorder and Adjustment Disorder with Depressed Mood. Symptoms of anxiety also occur in a variety of disorders such as Posttraumatic Stress Disorder, Generalized Anxiety Disorder and Panic Disorder, among others.

The Definition of Malingering:

Malingering is defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) as: “…the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives…”²   

How Often Does Faking or Exaggeration Occur?:

The actual number of individuals who exaggerate or fake psychological symptoms is not known. Estimates vary a great deal. I have seen reported rates of malingering ranging from 1% to more than 50%. For example, Rogers, Sewall and Goldstein obtained estimates of malingering of nearly 16% from a group of 320 forensic psychologists.³ Rates of malingering depend upon a variety of factors. One factor is the setting of the evaluation. There appear to be factors inherent in a treatment setting that inhibit doctors from assigning a label of exaggeration or faking to their patient. Among these are fear of harming the treatment relationship and legal liability. With some specific mental disorders, there may be heightened concern about exaggeration or faking. Posttraumatic Stress Disorder may be one of those disorders. Phillip Resnick noted that diagnosing Posttraumatic Stress Disorder depends upon the subjective report of symptoms by the litigant and that education about the required symptoms is available. He said: “The clinician who in a legal context evaluates a claimant for Posttraumatic Stress Disorder (PTSD) must consider the possibility of malingering.”⁴

Tools For Assessing Faking:

Psychologists have a number of tools that we use to attempt to identify exaggeration or faking of psychological symptoms. Among these are clinical interviews, observations and psychological testing.  Reviews of medical records and “collateral interviews” (interviews of family members or others who know the litigant) can also be helpful sources of information.  The remainder of this article will focus on the usefulness of the clinical interview in identifying or ruling out exaggeration or faking of psychological symptoms.

The Clinical Interview :

The terms “clinical interview”, “psychodiagnostic interview” and “history” are often used interchangeably. These terms all refer to a face-to-face meeting with an individual during which a clinician asks questions of an examinee in order to understand the examinee’s relevant history and current psychological functioning. This procedure consists of a series of questions about the plaintiff’s past and present symptoms and treatments and how psychological symptoms may affect interpersonal relationships, daily activities, ability to work, stress tolerance and other areas of functioning. Using interview techniques, the psychologist can explore the plaintiff’s reaction to any trauma alleged to have caused emotional distress or  psychological symptoms. The psychologist should also explore alternate factors that could have caused or contributed to the emotional distress in addition to the identified trauma.

Problems With Using the Interview as the Sole Measure of Malingering:

An interview can be very helpful in learning about an examinee’s past and present symptoms and level of functioning but, by itself, an interview appears to be insufficient to determine whether a litigant is exaggerating or faking psychological symptoms. A classic study demonstrating how incorrect conclusions can be drawn from an interview was conducted by David L. Rosenhan in 1973.⁵ In this study, eight normal people sought admission to twelve different psychiatric hospitals in five states. After calling ahead for an appointment, the “pseudopatients” arrived at the hospitals complaining of hearing voices. They provided the hospital with a false name and vocation but made no other falsifications of who they were or of their history and subsequently made no further simulation of any symptoms of mental illness. Even though they acted “normally” on the hospital wards, not one pseudopatient was revealed to be faking a mental illness. This study demonstrated how readily psychiatrists, using interviews without psychological tests, can be mislead into diagnosing a severe mental disorder. David Schretlen, reviewed a number of reports in which attempts to assess malingering was studied scientifically and he noted: “The findings suggest that until research validates use of the diagnostic interview for this purpose, it is probably indefensible to render expert testimony regarding the likelihood of malingering without psychological test data bearing on this question."⁶

Conclusions: Psychological Tests Can Help; Interviews Not Helpful

Clearly, malingering of psychological symptoms is an important issue that should be addressed in psychological evaluations occurring within a legal context. Currently, there is no data I am aware of that shows that mental health professionals can rely upon an interview alone to identify malingering accurately. A mental health professional who testifies about the absence or presence of  exaggeration, faking or malingering based on interview material alone should be challenged as to the scientific basis for his or her conclusions. Fortunately, there are some psychological tests, including the Minnesota Multiphasic Personality Inventory (MMPI-2) that show great promise as tools that can make accurate assessments regarding the presence or absence of exaggeration or faking of psychological symptoms.