MALINGERING

 

Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition [DSM-IV]

The essential feature of Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives. Malingering should be strongly suspected if any combination of the following is noted:

1. Marked discrepancy between the claimed stress or disability and the objective findings
2. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen
3. The presence of Antisocial Personality Disorder

In Factitious Disorder there is no external incentive but the need to maintain the sick role. In Conversion Disorder (and other Somatoform Disorders including pain amplification), there is no intentional production of symptoms, and symptoms are often relieved by suggestion or hypnosis.

PSYCHOLOGICAL ASSESSMENT

The last 2 years have seen a proliferation of research in detecting malingering, notably in the traumatically brain-injured (TBI). With the the refined scales of standard psychological (particularly memory[1]) tests, and the newly developed tests[2], psychologists and neuropsychologists can now confirm or refute malingering with a high degree of confidence.

Clinical research on cognitive deficits[1] has further refined methods for detecting malingering - medically "the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives"[2].

Normal subjects could accurately malinger post-concussive symptoms[3] However, even with coaching they were unable to simulate neuropsychological performance patterns of MTBI patients.

Clinical researchers[4] identified 5 tests which, when combined, were able to identify experimental malingering of memory deficits, with a high degree of certainty. Any one of the tests singly gave a highly variable results, but the full battery proved a powerful instrument.

PRACTICE POINT Without usurping the Court's prerogative, neuropsychologists now have reliable tools for identifying malingering of cognitive deficits

A South African university team[5] collated 17 items from the research literature and their own practice into a clinical routine which can distinguish confidently between real and malingered psychiatric illness.

Electromyography, recording electrical activity in muscles, gives identical electrodiagnositc results in Conversion Syndrome (Medical Litigation News Volume 2, Issue 2) and malingering. The experienced neurologist can, however, distinguish between the two by the client's response to the testing[6].

PRACTICE POINT The origin of bizarre symptoms without anatomical explanation can be identified with more confidence

Abundant empirical research shows that Personal Injury litigants are a psychologically distinct group among injured patients. Their distinctness increases as the severity of injury decreases.

A well-respected and prolific researcher concluded from a study of the psychological profiles of nearly

500 Personal Injury litigants: "The modal plaintiff appears to be an unhappy somatizer involved in a social context which encourages rationalization, projection of blame, and complaining."[1] In a quarter there was some evidence of malingering.

US neurologists have confirmed in clinical populations the Canadian findings in feigned Traumatic Brain Injury (Medical Litigation News Volume 1, Issue 5) that a number of tests of memory could identify probable malingerers[2].  Litigation as such did not significantly influence test results.

Computerised Dynamic Posturography, a clinical test for balance problems, has been developed and evaluated over the last few years. The patient's postural responses to unexpected unbalancing by movements of a foot-plate are analysed. A newly validated[3] profile for simulation or malingering of balance problems can and should be included in the forensic assessment of post-traumatic dizziness.

Late Whiplash, like other Pain Syndromes, has a characteristic profile on the Psychological Symptom Checklist (SCL-90-R). As the condition is suspected by some to be malingered, Australian researchers[4] asked university students to simulate it: they were unable to do so.

A Canadian team[5] found that sub-scales of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) identified feigned Depression but not as well as feigned Schizophrenia. Greater personal familiarity with the features of Depression probably explained the difference, but the test was valuable.

1998 saw clinicians and theorists trying to come to grips with MOTIVATION and AWARENESS in characterising (legal) impairment that cannot be explained by (legal) handicap.

Clinicians have difficulty distinguishing between Malingering and Somatoform Disorder because a) mental disorders are not diseases in the sense of having an objective pathological basis, and b) awareness of secondary gain is on a continuum rather than being either present or absent.

1998 saw clinicians and theorists trying to come to grips with MOTIVATION and AWARENESS in characterising (legal) impairment that cannot be explained by (legal) handicap. The Diagnostic and Statistical Manual, 4th Edition (DSM-IV) defines malingering as

the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding work, obtaining financial compensation, evading criminal prosecution or obtaining drugs.

Straightforward as this definition may seem to litigators, the medical and psychological community continue to struggle with the concepts of intentional and false in this context.

In an essay on the epistemology (how we know what we know) of mental illness, psychiatrist

Lawrence Reznek proposes¹ that (t)he most important epistemological problem in psychiatry is the detection of malingering.

He points out that there is no objective criterion to validate the existence of any psychiatric "diagnosis", since all the constructs are merely clusters of (subjective) symptoms and observed behaviours, that is, syndromes not diseases. Since both symptoms and behaviours can be fabricated, clinicians have particular difficulty detecting malingering of mental illness.

Such difficulty extends to the common Personal Injury varieties of Somatoform Disorder including Chronic Benign Pain and its variants such as Fibromyalgia Syndrome and Myofascial Pain Syndrome.

Clinical psychologists continue to refine tests for malingering of cognitive deficits, where untutored malingerers have erroneous beliefs about the differential effects of organic brain damage on memory and skills.

Thus, for instance, patients who malingered late whiplash scored significantly worse than patients cognitively impaired by severe Traumatic Brain Injury on recognition tests popularly and incorrectly assumed to depend on memory. The majority of late whiplash litigants underperformed during short-term memory and word recall testing, compared with less than a third of nonlitigants ². "Underperformance" is measured against abilities in other tests and indicates a conscious or unconscious motivation to perform below competency.

Clinicians have difficulty distinguishing between Malingering and Somatoform Disorder because a) mental disorders are not diseases in the sense of having an objective pathological basis, and b) awareness of secondary gain is on a continuum rather than being either present or absent. Both psychologists and physicians continue to grapple with the concepts of Malingering, Secondary Gain and Somatoform Disorder for diagnostic and therapeutic purposes and their debate inevitably has medicolegal fall-out.

A 1995 US paper ³ reviewed evidence for the usefulness of secondary gain, a concept that originated in Freudian psychoanalysis. The authors found overall empirical support for the idea, but conflicting results from some of the previous research studies. In keeping with their call for future research, an English psychologist found ⁴ that hypochondriacal concerns were mainly associated with a desire for independence, to avoid help, whereas report of bodily symptoms was related to dependence, desire to gain the attention and help of others (secondary gain).

The legal dualism of either malingering or not malingering does not fit comfortably with the psychological proposition ⁴ that a genuine disorder lies at the centre of a continuum between faking bad (malingering) on the one hand and, on the other, faking good (defensiveness), as for instance when a worker covers up cognitive deficits to maintain employment.

Canadian physician Dr Robert Ferrari and forensic psychologists Oliver Kwan and Jon Freil are blurring ⁶ the previous tortious distinction between aware malingering and unaware somatisation with the terminology preconscious, meaning "just beneath our level of awareness and easily brought into awareness". They propose as a useful model the 33 year-old equations,

Personality difficulties + Troubled life situation = Unacceptable disability
Unacceptable disability + Accident = Acceptable disability

CHRONIC PAIN

SUMMARY: There are no reliable criteria on which to judge how commonly malingering of chronic benign pain occurs. There are no valid tests of malingering in chronic benign pain, but psychological evaluation can assist by making or excluding alternative diagnoses.

Though it is a frequent concern of personal injury litigators, malingering of chronic pain has rarely been systematically researched ¹.

Despite recent suggestions that awareness is not either present or absent but a matter of degree, the conventional distinction is between aware malingering and unaware somatisation.

There are no reliable criteria on which to judge how commonly malingering of chronic benign pain occurs. As previously discussed, the terminology functional overlay has no validity and should be abandoned. Similarly, Symptom Amplification Syndrome is a concept for which there is no acceptable scientific support.

Pain Disorder is a variety of Somatoform Disorder, for which there are generally accepted, defined criteria, as there are for Malingering, in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition [DSM-IV].

There are no valid tests of malingering in chronic benign pain, but psychological evaluation can assist by making or excluding alternative diagnoses. DSM-IV Criterion C for Pain Disorder is the central distinguishing feature for which psychiatric or psychological expertise is required:

Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain.

Both claimant and defence counsel should insist that Pain Disorder and Somatoform Disorder be substituted for the ill-defined and often pejorative terms that physical medicine specialists sometimes use in expert reports and testimony.

For litigation purposes, it is useful to classify ² claimants' intentional deception:

Recent meta-analysis ³ suggests that some chronic pain patients are malingering, but the poor quality of the available studies makes the quoted prevalence figures of 1-10% unreliable.

A 40 year-old study ^{4, 5} on "cure by verdict" is a medicolegal classic. Even if Miller's 1961 findings had been confirmed by subsequent studies - which they were not ⁶ - the prevalence of malingering would be only 1.25%.

Various methods of testing for malingering have been proposed but found not to be valid:

Only isokinetic strength testing has promise among the methods currently available. The speed of muscle contraction is kept constant but there is a variable resistance that adjusts to the muscle's ability to generate force. The research to date is consistent that the test can distinguish between maximum and submaximal effort, and between a best and a faking effort.

It remains unclear why isokinetic strength testing appears to discriminate where isometric (constant muscle length) fails.

MILD TRAUMATIC BRAIN INJURY

SUMMARY Critical evaluation of tests for malingered TBI is still awaited. Unexpectedly poor and inconsistent results on certain tests may be evidence of intentionally inferior effort.

Estimates of the prevalence of malingering in Traumatic Brain Injury (TBI) range from 1 to 50% ¹.

Routine neuropsychological testing cannot reliably demonstrate malingered brain injury ². However, the astute neuropsychologist will pick up clues that specific testing for malingering is required.

In particular, malingerers as a group are more sophisticated in simulating impairment in verbal tasks than in nonverbal or timed tests. Typically they "aim too low" in estimating how much brain injury compromises nonverbal or timed performance.

Critical evaluation of tests for malingered TBI is still awaited. In contrast with chronic benign pain, exhaustive meta-analysis of tests for malingering in Mild Traumatic Brain Injury (MTBI) has not yet been undertaken.

Though there are papers reviewing and critiquing individual psychological instruments, comprehensive assessment of the reliability of such testing is lacking. Moreover, it is not clear to what extent the results of experiments in which subjects are asked to simulate or exaggerate can be generalised to malingered brain injury in the medicolegal environment².

There is, however, a growing body of evidence ³ that certain forced-choice tests are most sensitive and specific for one-time examination, and other promising methods are currently under evaluation.

The Portland Digit Recognition Test and the Victoria Symptom Validity Test are among the currently established single examination methods for best detection of malingered brain injury.

Unexpectedly poor and inconsistent results on certain tests may be evidence of intentionally inferior effort.

On a one-time battery of psychological instruments routinely used to detect malingering, those subjects who had been asked to simulate head injury were clearly distinguishable³ from normal controls.

However, first, second and third spaced repetitions of the Symptom Validity Test (SVT) in particular produced such inconsistent scores in simulators that this variability has been proposed as a basis for detecting malingering.

The authors caution that there is some evidence that, at least in the early stages of recovery from MTBI, particularly that involving the frontal lobes, variability on repeat retesting distinguishes the genuinely brain-injured from normal control subjects. It remains to be determined whether that variability is different in kind and extent.

The Word Memory Test examines the ability to learn a list of 20 pairs of semantically-related common words. The words uniformly require a low reading ability and, though the Immediate Recognition and Delayed Recognition subtests seem difficult, they are easily passed by patients with severe head injury.

By contrast, more than a quarter of MTBI claimants performed so poorly that the mean average score for the whole group was significantly worse than that of a control group of patients whose much severer TBI had been accepted for compensation ⁴.

This paradoxical superiority of test scores in patients with more severe brain injuries is seen in other tests that have been used to validate measures of biased responding - Computerized Assessment of Response Bias (CARB) ⁵ and Warrington Recognition Memory Test ⁶. The counter-intuitive results are currently thought to be a reliable measure of intentionally poor effort.

POST TRAUMATIC STRESS DISORDER

In addition to inconsistencies in the clinical history, features which might indicate malingered posttraumatic stress disorder (PTSD) include

1. Patchy employment record
2. Previous incapacitating illnesses
3. Emphasis on reliving symptoms
4. Absence of nightmares or sexual dysfunction[3].

Copyright © 2009 Electronic Handbook of Legal Medicine