Defense medical experts will try to discredit your client with so-called “tests” to show that they’re malingering, or exaggerating their symptoms. But these tests are subjective, and inconsistent. Excerpted from the free eGuide Injury Lawyer’s Guide to Debunking Claims of Exaggeration and Malingering, by Dorothy Clay Sims, here is the bottom line on malingering tests:
l. I am unaware of any malingering test that was created using actual verified and confirmed malingerers. Rather, to the best of my knowledge, these tests often are created using college students who are told to simulate malingering or exaggerating behavior. This is not scientific. No doctor I have deposed has been able to name a malingering test that was created using verified malingerers. Moreover, in many instances, we don’t know enough about a particular test to rely upon it. For example:
- Was this test confirmed by blind peer review?
- How was bias accounted for in the administration of these tests?
- Was the patient given this test in a 2-day grueling neuropsychological battery like your client, or for only 30 minutes?
- How many in the sample took this test? If you are dealing with a few dozen people, that’s probably not enough to draw a conclusion.
2. No malingering test explains why your client did poorly, so to conclude the only reason must be malingering is to exclude multiple other potential causes, none of which the defense medical expert asked about or discussed with the patient. These other potential causes include:
- The effects of medication;
- The effects of pain;
- The effects of depression;
- The effects of anxiety (e.g., at being sent to a doctor the patient knows does not have his best interest at heart).
DMEs will say “studies show” that pain, depression, etc., do not account for the poor score earned by your client on a particular test, but there are probably no studies that account for how someone with your client’s education, and physical and emotional injuries would approach the test. Until that data is produced, it is inappropriate to classify your client as a malingerer. It is nothing more than pure speculation. Certainly, intentional misrepresentation can be a possible explanation of a poor score, but it cannot be the only possible explanation.
3. The tests are used selectively. My brother has profound Down syndrome. He cannot speak clearly, cannot read, cannot see well and has a hard time walking. Administer any of the malingering tests in this guide and he would flunk. Is he faking his mental retardation? Is he faking his inability to write a letter, read the alphabet or even understand a simple Sesame Street episode? Of course not. The accusation is ridiculous. It is equally ridiculous when applied to many plaintiffs.
DMEs rarely will claim that a person who is obviously impaired, or a child, or a very elderly person, or a minister, or any other sympathetic plaintiff is malingering, even when they flunk these types of tests. Why? Because it makes the DME look like a jerk. I’ve seen a number of cases where sympathetic plaintiffs—sweet, elderly grandmothers; hard-working firefighters or cops—flunk multiple measures on effort, and the DME still gives them a free pass. If these tests are scientific and reliable, then those cops, firefighters, and grandmothers are all a bunch of liars. The only other conclusion is that these tests are unreliable. The rules apply to everyone or no one—except when a bad DME is administering and/or interpreting the test.
Dorothy Clay Sims has decades of experience in workers’ compensation and Social Security disability law. Inspired by the abuses inflicted on her clients by sketchy defense medical experts, she spent over a decade studying psychological tests, physical exams, anatomy, and more to better understand how defense medical experts manipulate data, so she could reveal their dishonesty to juries. She shares this knowledge in her book Exposing Deceptive Defense Doctors.