By Dorothy Clay Sims
Excerpted from Exposing Deceptive Defense Doctors
E. Games DMEs Play
Several years ago I started keeping a list of things I observed during cross-examination that I felt were manipulative on the part of the defense medical doctor. That list has grown and continues to grow. (It could probably serve as an entire book in and of itself.) I see the most manipulation surrounding the topic of malingering and/or exaggeration.
David Ball, who has studied juries for many years, is very clear in his instruction: “Do not treat this kind of dishonest testimony as if it just a difference of opinion. It is lying.” Sadly, each of the following examples of manipulation of data and test results actually happened in real injury cases.
§7:40 Games During the Test
§7:42 Reporting and Interpreting Test Results
§7:42.1 Claims Malingering Based on Test That Is Not a Malingering Test
Often, bad doctors will ignore the multiple validity scales within these tests and claim malingering by relying on, say, poor scores on Trailmaking A (which is not a malingering test but, in fact, is a test of the executive function of the brain). Expose this dishonesty. For example:
Q: So, doctor, you gave my client the MMPI-2, correct?
Q: My client passed all validity scales, right? He passed the Vrin, Trin, L, K, Fp, Fb, and the F-scales, correct? [These are various validity scales within the MMPI-2, designed to determine whether the individual gave true effort and the test results are reliable.].
Q: Let’s see now, that’s seven different scales to tell us if the plaintiff is approaching the test in an honest and straightforward manner, and my client passed them all?
Q: But you conclude malingering depression based on the Trailmaking A, which was never created as a malingering scale, has no manual permitting or even encouraging the test to be interpreted in such a way, does not have any standardized scoring manual, and does not test for depression, right?
If the doctor claims the test he administered actually was created for the purpose of determining malingering, have him read into the record what the test was created for, as indicated in the manual.
Here are a few examples of tests that defense doctors typically claims are malingering tests, but were never created for that purpose and have no scoring manual permitting that interpretation: Wisconsin Card Sorting Test; Oswestry (developed for the low back only); McGill Pain Scale; Modified Somatic Pain Questionnaire; and the Pain Disability Index. If your client does well on a particular test, the defense doctor won’t talk about it or will call it something else. If you client does poorly, the DME may use this as evidence of malingering.
§7:42.2 Lies About Test Purpose
If your client does well on a malingering test (e.g., the Word Memory Test), the DME will claim it is a memory test. If your client does poorly, it is a malingering test.
Q: Doctor, which does the test publisher call this test?
Q: Doctor, show me the test administration and interpretation manual so I can see how this test is described.
§7:42.3 Using Wrong Tests
Some neuropsychologists will testify that certain malingering scales reflect a lack of motivation. Be careful. Often, these tests, in fact, reveal concentration problems. The reverse is also true. Some doctors may call a malingering test a memory test when the patient passes, but conclude malingering if she fails. For example, in one case, a doctor testified that he administered a test that was sensitive to right hemispheric brain damage. My client was severely injured when the left side of his head impacted the safety glass of his window. The doctor concluded no brain damage because he tested for functions affiliated with right-sided brain activity, knowing full well that it was the left side of my client’s brain that was damaged.
§7:42.4 Claims Plaintiff Flunked When Scoring Manual Says She Passed
What if the test administered really was created to determine whether your client is malingering? How do you know your client flunked? Always ask for the score that the manual says represents flunking, and ask the doctor if the patient actually flunked, pursuant to the manual’s scoring method. Ask the doctor to show you where in the manual it states that he is permitted to reach that conclusion. If he cannot back it up with science, then it’s pure speculation and should be excluded. Doctors may claim certain scores are “elevated” when the test manuals say the score is passing, or vice versa.
§7:42.5 Selectively Reports Test Results
Some defense doctors will pick and choose which test results to include in their reports, slanting the report in favor of the defense. They “forget” to report malingering scales when your client passed, or they report only the subscales that conclude malingering, not those your client passed.
As an example: The California Verbal Learning Test is frequently given in a neuropsychological environment. This test is used to assess verbal learning and memory.70 One portion of this test is called the “Forced Choice Component.” In this portion of the test, the plaintiff is given a choice of answers, rather than generating them independently on his own. Some DMEs use this portion of the test as a malingering scale, and will report that poor scores are indicative of malingering. If, however, your client passes this portion of the test, that fact will be left out of the report. Translation: I’m only going to report evidence that supports the defense—the side that is paying me. Press the doctor on this point. If the DME’s report does not mention the forced choice component, ask the doctor if, in the past, he has claimed the missing items in this portion of the CVLT are evidence of malingering. He probably will have to admit he has. Then, point out that your client did well in this section, but his report says nothing about this section being evidence of no malingering. You may find the DME has never testified a defense-referred plaintiff was honest and never testified a patient referred by the plaintiff was malingering.
Unless you know the doctor’s pattern, he won’t get caught when he plays this game. Ask the doctor the following:
Q: Doctor, have you identified every single scale that you have claimed in any other case was an indication of malingering?
Q: Have you reported all those scores on those tests in my client’s case?
Q: Doctor, please identify each test in this battery which you have ever concluded is evidence of malingering?
Q: Doctor, please identify all scales which you have ever concluded were evidence of malingering in other cases. In other words, please identify those scales or subscales which you believe have a component of effort or the ability to determine exaggeration. Let’s go through each one, and please identify on all of those scales whether or not my client passed in this case.
Q: Doctor, we’ve now established l0 tests which you’ve indicated have lead you to believe a patient may be malingering in other cases. My client passed those l0 tests, indicating no malingering. Why did you leave all of this information out of your report?
Similarly, I’ve encountered many doctors who ignore a perfect score on the forced choice component of the CLVT. It’s inconvenient when your client passes. Consider:
Q: What was my client’s score on the Forced Choice component of the CVLT?
A: Uh, it was ok.
Q: Sir, didn’t my client get a perfect score?
A: Some might call it that.
Q: Sir, would the test administration manual developed by the creators of this test call it a perfect score?
Q: Doctor, if a patient receives a poor score, or misses items on this portion of the test, some members of your profession might argue that the patient isn’t giving full effort, correct?
A: Some may say so.
Q: Doctor, have you testified in the past when someone did poorly on this measure that it was evidence of malingering?
A: Uh, yeah.
Q: And when the patient passes, like we have here, indicating NO evidence of malingering, you don’t admit this in your report, do you?
A: Uh, that’s correct.
Q: You left out evidence that my client was telling the truth, didn’t you?
Q: Isn’t it important to admit when you have evidence that my client is honest?
Q: You shouldn’t hide data that hurts the side paying your bill, should you?
§7:42.6 Concludes Malingering Even When Plaintiff Passed Most (or Even All) Malingering Tests
What if your client was administered several trials of a test and passed most, but not all of them? The defense-oriented doctor will be quick to conclude overall malingering. Likewise, if your client was administered 25 malingering tests and passed 24, the defense-oriented doctor will ignore the majority and conclude malingering. Look for situations where the plaintiff passed 90% of the malingering tests, and the DME concluded the plaintiff was 100% malingering; or in other cases, the plaintiff passed all the tests, yet the doctor still concluded the plaintiff was malingering. Demand that the DME show you where in the manual such a conclusion is permitted.
§7:42.7 Fails to Provide Actual Percentages, But Refers to “Z” Scores or “T” Scores
Psychological testing can be broken down into percentages. For example, your client may fall within the bottom first percentile on a particular test, indicating clear impairment. However the defense doctor may only report the scores, for example 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 doesn’t mean much to most lawyers, but finding out that your client was so impaired he fell within the bottom first percentile most definitely does.
Assume the doctor gives your client the Controlled Oral Word Association Test (“COWAT”). The COWAT is usually administered when brain damage or concentration problems are suspected. It is not a malingering test, but the doctor claims your client has a normal COWAT Z-score of -2.70 and is, therefore, malingering the symptoms. Let’s break this down to everyday speak. A “Z” score of -2.70 means that 99.6 percent of the population did better than your client! That is not a normal score; it is an impaired score. However, unless you know how to convert the scores, this is what the deposition will look like:
Q: Doctor, what does that mean in terms of what percentage of the population did better on that test than my client? In other words, what is my client’s percentile ranking?
A: I don’t know, counselor. As a professional, I do not need to convert it to a percentile score to know it is not impaired.
There you are—a handful of air. This testimony is useless to you. Try this instead:
Q: Doctor, I have a conversion table for derived scores from Test Scores and What They Mean, published by Prentice-Hall.According to this table, my client scored lower than the bottom one percent of the percentile rank. Do you deny this?
A: I did not convert the score, counselor.
Q: Doctor, isn’t it true that the reason you did not convert the score to a percentile rank was because it very well indeed would show my client is in the bottom one percent?
Q: Doctor, you converted the other scores in which my client was not impaired to percentile rank. Why the difference?
A: Uh, I don’t recall.
Q: Doctor, do you deny, as we sit here today, that this Z score converts to a percentile rank putting my client in the bottom l percent of the population to whom he is compared?
Q: In other words, if you put 100 people in a room and gave them a COWAT, nobody in the room would perform more poorly than my client?
§7:42.8 Claims Pain Scales Are Actually Malingering Scales
If the patient endorses too many pain symptoms, he’s malingering. If he endorses too few, then there is nothing wrong with him.
§7:42.9 Claims “Borderline Flunking” or “Borderline Passing”
There is no such thing as “borderline flunking.” Your client passed or did not pass, and there is nothing in the test booklet that permits the doctor to conclude otherwise.
Also watch out for the doctor who graciously admits your client is not malingering, and then gratuitously mentions a malingering scale or throws in a statement about your client “borderline passing,” or says something like, “I don’t think your client is exaggerating. Of course, one can never rule it out.” I’d long feared that doctors did this in an attempt to put the word “malingering” or “exaggeration” in front of the jury and get them chewing on something they might never have considered on their own. I asked well-known jury consultant David Ball about this. He confirmed my suspicions:
There are two kinds of problem doctors. One kind uses junk science and bogus methods. The other just drops unfounded assumptions—such as, “He was borderline on the malingering scale,” or, “This could be exaggeration of symptoms.” There is rarely a basis for such a statement. The doctor might even say, “I’m not saying he is malingering,” but he has brought up the topic, aroused suspicion about it, and never says, “The patient is not malingering.” We have seen in trial after trial that this deceptive implication drives verdicts lower and generally undermines jurors’ confidence, even in the plaintiff’s liability case. It is dirty pool; the doctor knows it is dirty pool; and the doctor makes a great living doing it. This level of dishonesty stems from both the drive to make a bunch of money and from the fact that many such doctors hate lawsuits that help plaintiffs.
§7:42.10 Ignores the “Retest” Effect
The DME claims your client is not brain-injured because he administered a test previously administered by your doctor and your client tested out much better. Therefore, defense doctor concludes your client either is malingering or is cured. Wrong on both counts. Ask the doctor about the retest effect. 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 and not because he is actually improving. This does not mean the patient is better. It is simply a factor of the retest effect, and many studies exist to determine the exact increase in scores that might be expected based upon these phenomena. Studies show, for example, a potential problem when dealing with I.Q. tests. How do you know if the test has a “retest” effect? Do you have to hire a psychologist? No. Google the name of the test along with the word “retest” or “practice effect,” and you can pull up articles instantaneously. Therefore, if the DME gives your client the same test your expert just gave a few months earlier, ask about the retest effect:
Q: Doctor please describe the “retest” or “practice” effect.
Q: Doctor, isn’t it true that if you give the I.Q. test a second time within a few months of the first administration of the test, the individual’s I.Q. score can increase, but that increase reflects nothing more than the practice effect?
Q: There were many other tests of a similar nature you could have administered, but you chose not to, correct?
Q: Isn’t it true that you gave the very same test that was administered by my client’s treating psychologist so you could try to argue that my client had gotten better and was less impaired?
Q: Show me where you have conducted research on the retest effect with regard to this particular test.
§7:42.11 Ignores Treating Physician’s Diagnosis, Record of Treatment—Confirmatory Bias
The defense doctor may claim the plaintiff’s condition exceeds what one would expect from the physical findings. In some cases, however, this requires the defense doctor to completely ignore the majority of the evidence, starting with the treating physician. The defense witness will rely only on other defense experts to claim that the plaintiff 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.
Q: Do you actually know the differences between the qualifications of the plaintiff’s treating doctors and the defense expert witnesses?
Q: It would be inappropriate then for you to determine one expert is a better doctor, more intelligent, and more reliable than another doctor, correct?
Q: So, if we rely upon the testimony and findings of the treating doctors—the doctors who have spent the most time with the plaintiff, who have not been hired as part of a lawsuit, but were retained solely to try to help this man get better—if we rely on those doctors and their findings, then isn’t it true that you must conclude my client is suffering from ____?
§7:42.12 Claims Normal I.Q. Means No Brain Damage or Psychiatric Diagnosis
There is a “myth” of head injury recovery. In fact, patients who are tested 1-2 years after an injury may show little change from their pre-injury I.Q.
§7:42.13 Claims Normal Scales on Memory Tests Mean No Brain Injury or Psychiatric Problems
Get the doctor to admit that many types of brain damage may not affect the memory. For example, cerebral palsy and locked-in syndrome (secondary to a stroke) do not affect a patient’s memory. Consider Jean-Dominique Bauby who sustained brain damage from a stroke. He could only slightly move his head and one eyelid. He essentially “blinked” out a book, The Diving Bell and the Butterfly. It took him some 200,000 “blinks” to identify the letters and words which resulted in this brilliant book. Clearly, he had no memory problems, but had profound brain damage.