by James O'Brien, M.D.
Medical-legal psychiatric diagnosis is not an artless and thoughtless cookbook procedure based upon subjective complaints without objective verification. It is not enough for an examiner in a medical-legal setting to assign subjective complaints to a laundry list in DSM-IV. The competent evaluator must always consider issues of secondary gain and malingering. Any examiner who fails to do so should be questioned relentlessly in deposition or cross-examination as to why he failed to consider this possibility. This is one of the reasons that forensic training is so important for psychiatrists or psychologists doing this kind of work. The working paradigm of modern clinical psychiatry considers the patient's feelings first, while matters of fact are secondary. The converse is true in the forensic setting because the objectives of the forensic evaluation are investigative rather than therapeutic. Few mental health professionals really understand this critical distinction.
Fortunately, there are many clues to the genuineness of an applicant's claim. It is far easier catching someone faking a psychiatric illness than low back pain, since most of the lay public is unfamiliar with how the former presents in clinical situations. Self-report inventories, a staple of applicant-biased evaluators, are merely invitational measurements of subjective distress and high scores may actually support a diagnosis of malingering. Skilled clinical interview techniques and proper psychological testing can be invaluable in clarifying genuineness.
Between genuine and questionable claims, a spectrum of intermediate and equivocal responses exist. It is important to remember that malingering is a medical term in a social context, not a legal term and that symptom exaggeration as well as outright faking both constitute malingering. It is possible that malingering may exist in a compensable psychiatric injury, such as when a claimant overstates the degree of suffering and the degree of disability after a robbery at work. Malingering usually carries a negative social connotation, although there are exceptions. An example would be a prisoner of war or a hostage faking a medical or psychiatric condition in order to manipulate his release. Deception by subjects may include "faking good". This may occur in "fit for duty" situations or civil committment hearings when a subject who is demonstrating obvious signs of mental dysfunction such as psychosis will deny psychic suffering.
The clinical data, especially the medical records and collateral information are valuable sources in the assessment of clinical malingering. When an individual is claiming severe dysfunction in carrying on activities of daily living and outside sources provide evidence to the contrary, not only is there evidence of clinical malingering, but also a credibility problem which might undermine a concomitant physical injury claim. In case of physical injury leading to psychological symptoms, it behooves the evaluator to gain familiarity with the pathology of the primary injury. A 22 year old with 1-2 mm disc bulge and no fracture claiming 2 years of disability and chronic pain should raise eyebrows much more than the same disability in a 60 year old with a 6 mm bulge and impingement causing true sciatica.
Fortunately, psychological testing can aid in the detection of malingering. Several indicators on the MMPI can demonstrate when claimants tend to exaggerate by endorsing an implausible number of symptoms, especially obvious symptoms of mental illness, but not subtle symptoms. Beware of computerized test interpretations. Computerized narratives are "humanistically" biased and tend to discount malingering, even when it is undoubtedly present. I have seen profiles interpreted as valid (F-K greater than 11) despite the fact that 50 years of MMPI research do not support such a conclusion. I personally know of one nationally known computerized scoring and interpretive service that will always "spin" a malingering profile into a "cry for help" or similar nonsense.
Unsophisticated malingering can be detected by the use of statistical measures. The applicant claiming amnesia and concentration difficulties may be given a memory challenge which is actually quite easy that he bothces to an implausible degree or a statistically improbable failure rate. For example, if I hide a coin in a hand and ask the claimant which hand it is in, a true amnestic will fail 50% of the time based upon pure statistical odds. Malingerers, however, attempt to appear even worse, and will deliberately pick the wrong hand significantly more often than 50% of the time. The reliability of these tests as well as the MMPI vadidity scales (the clinical scales are much more suspect) stand up well in the courtroom since they are actuarial measurments and are not predicated upon unprovable psychiatric theory.