Malingering of Psychiatric Problems, Brain Damage, Chronic Pain, and Controversial Syndromes in a Personal Injury Context

I.

INTRODUCTION

Malingering is defined as "the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives..." by the American Psychiatric Association (APA).1 The APA's Diagnostic and Statistical Manual further states that, "Malingering should be ruled out in those situations in which financial remuneration, benefit eligibility, and forensic determinations play a role."2 Treating clinicians, however, may not know that a patient has such motivations since a patient may not disclose a pending lawsuit. Moreover, in treatment settings, few clinicians have reason to suspect feigned symptoms and few have sufficient training or tools to assess the problem. Not surprisingly, they rarely find it.3

Treatment providers tend to trust their patients. Often, there is no reason for them to do otherwise. A recent survey4 tellingly quoted the responses of several pain experts:

"I believe pain is what the person says it is."

"If he says he is suffering, then he is suffering."

"Pain is a subjective experience. Experts in pain are taught to believe the patient's reports. Diagnostic tests are not as useful for pain conditions as other medical problems."

Two writers, after examining a number of Post Traumatic Stress Disorder (PTSD) claimants who had been held hostage for three hours, stated that, "the victims involved in this incident appear to have been genuine, honest people .... They were largely a law-abiding group who had previously shown respect for, and trust in, authority."5 Despite the fact that all were involved in litigation, no assessment of malingering was deemed necessary. The reliance on a claimant's apparent good character is probably ill-founded. A survey of university students, presumably also without significant criminal histories, found that forty-eight percent indicated they would fake symptoms following an accident to recover more money in a personal injury lawsuit.6

Treatment providers sometimes have been very reluctant to acknowledge the possibility of faking or exaggeration, even with those patients involved in litigation. A recent authoritative work on chronic pain contains no chapter on malingering or exaggeration.7 When the Clinical Journal of Pain published a recent special issue on malingering in pain patients, several contributors opined that malingering is infrequent in pain populations, although one grudgingly admitted that rates may be higher in litigating populations.8 By contrast, a recent survey of psychologists who evaluate pain patients involved in litigation estimated that approximately thirty percent were engaging in exaggeration or malingering.9 While some researchers have investigated techniques to detect malingering, treatment issues remain the primary concern (with a dash of advocacy as reflected in their characterization): "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."10

In contrast to treating professionals, forensic psychologists consider malingering assessment a crucial element of their craft and routinely test for it. Because this situation 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." Other differences between forensic evaluators (who may be clinical, forensic, or clinical neuropsychologists) and treating clinicians are summarized in Table 1 (adapted from S.A. Greenberg & D. W. Shuman, 1997).12

This article will review issues pertaining to malingering psychiatric and cognitive impairment in a personal injury context. As such, it will discuss the techniques available and examine syndromes where defense counsel frequently may face psychiatric faking or exaggeration: head injury, PTSD, depression, chronic pain, and controversial diagnoses.

II.

ASSESSING FOR MALINGERING

Before proceeding, it is important to understand that not all dramatization or even intentional failure necessarily qualifies as malingering. Factitious disorder involves the intentional production of symptoms, but only for the purpose of being treated as a sick person - not external incentives as in malingering. However, the diagnoses are not mutually exclusive. For example, a man who fears losing his wife might exaggerate his health problems in order to gain her sympathy. If this continues over time, his wife may press him to apply for disability or to litigate in order to compensate for loss of income. In such a case, the husband may have no interest in the financial outcome, but he may fear exposure to his wife.

Two other diagnostic possibilities include conversion disorder and somatoform disorder. In conversion disorder, it is thought that the symptom is produced unconsciously as part of a hysterical personality style to cope with a psychological conflict. However, this proposition has never been rigorously tested and it is quite possible that even such personalities are aware of their exaggerations. In somatoform disorder, the symptoms are believed to be part of a neurotic personality style that indirectly expresses needs for nurturance through bodily complaints. Thus, the desired reward is attention or sympathy from family members, friends, or medical staff. An alternative, less psychodynamic explanation is that such persons are biologically disposed to experience more negative emotions and negative bodily sensations than most people. People who are neurotic tend to be relatively dissatisfied with their health, as well as their employment or marriage.13 They may well experience more unpleasant bodily sensations than most people, particularly as they approach middle age - or they may just complain more than others.