Make Believe or Mental Disorder?
Fraud in emotional harm and neuropsychological injury claims.
Claims examiners are understandably a skeptical group. They tend to assume that any claimant who overstates his actual level of emotional harm or neuropsychological impairment is malingering. While that is often correct, it is important to recognize that not all exaggeration, or even intentional failure, on a neuropsychological test is necessarily malingering. This article considers other explanations for nonproximally caused emotional symptoms, and methods for detecting feigned neuropsychological impairments.
Malingering Emotional Harm
Malingering is the intentional production or reporting of symptoms to obtain an external reward (e.g., money) or escape undesirable consequences (e.g., work, jail, etc.). The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) is the key reference work in the fields of psychiatry and psychology. It recommends that malingering strongly be considered during evaluations performed in a legal context if one of three factors is present—a marked discrepancy between the claimed disability and objective findings, poor cooperation with the evaluation process, or the presence of Antisocial Personality Disorder.
Examiners must be careful, however, to consider reasons other than malingering that can cause claimants to exaggerate their conditions or even intentionally harm themselves. Factitious Disorder is the intentional production of mental or physical symptoms of illness to assume the role of an ill person and thereby receive compassionate care.
Claimants with Factitious Disorder intentionally induce sickness or injury, or subject themselves to multiple, invasive, and even dangerous medical procedures without a genuine medical need. The claimant then derives gratification from the attention and care received as a “patient.” Although a claimant with Factitious Disorder is intentionally producing his or her symptoms, the desire to derive compassionate care is driven by a mental illness rather than malingering.
These claimants will deny intentionally harming themselves and flee healthcare facilities, medical providers, and adjusters when confronted with the intentional aspects of their self-injurious behaviors, only to repeat their pattern at another facility on another date. The cause of Factitious Disorder is not known, but certainly is not caused by insured events like motor vehicle accidents.
The possibility of a Somatoform Disorder also must be excluded. Somatoform Disorders are mental disorders that result in the patient expressing psychological conflict and distress in the form of physical symptoms that can appear like a general medical condition. They include:
- Somatization Disorder is a polysymptomatic disorder that begins before age 30, extends over a period of years, and is characterized by a combination of pain, gastrointestinal, sexual, and pseudoneurological symptoms.
- Undifferentiated Somatoform Disorder is characterized by unexplained physical complaints lasting at least six months that are below the threshold for a diagnosis of Somatization Disorder.
- Conversion Disorder involves unexplained symptoms or deficits affecting voluntary motor or sensory function that suggest a neurological or other general medical condition. Psychological factors are associated with the symptoms or deficits.
- Pain Disorder is characterized by pain as the predominant focus of clinical attention. In addition, psychological factors are judged to have an important role in its onset, severity, exacerbation, or maintenance.
- Hypochondriasis is the preoccupation with the fear of having, or the idea that one has, a serious disease based on the person’s misinterpretation of bodily symptoms or bodily functions.
- Body Dysmorphic Disorder is the preoccupation with an imagined or exaggerated defect in physical appearance.
- Somatoform Disorder Not Otherwise Specified is included for coding disorders with Somatoform symptoms that do not meet the criteria for any of the specific Somatoform Disorders.
Malingering Emotional Harm
Posttraumatic Stress Disorder (PTSD) is among the most common emotional harm claims in complex high risk cases, and since many of the signs and symptoms are well known among the general public, exaggerated or malingered symptoms are often suspected.
The rate of malingering among PTSD claimants is not known with any precision, but published estimates range from 20-59%. Those figures may be underestimates since those who are successful in their deception would not be counted.
Forensic examiners who are unaided by specialized tests cannot distinguish reliably between malingerers and persons actually suffering a mental disorder. One recent study in a state forensic facility found that psychiatrists who relied on interviews and medical file data failed to identify 50% of malingerers who were identified through specialized testing. The error rate likely is much higher among professionals in non-forensic settings who are focused on treatment rather than forensic assessment.
Four sources of information are vital in assessing feigned PTSD in a forensic setting:
- Semi-structured interviews that thoroughly cover the claimant’s life, including everyday functional behaviors (e.g., shopping, recreational activities, etc.), before, during, and after the traumatic incident.
- The examiner’s observations of the claimant’s manner both during and outside of the interview.
- Specialized psychological testing designed to identify malingering.
- Collateral information from family members, treatment providers, private investigators, witnesses to the traumatic event, and persons who are not a party to related litigation but are familiar with the claimant’s daily behavior.
Very few forensic examiners complete all four steps and they almost never are performed in a clinical setting.
Psychological Testing to Detect Feigned Emotional Harm
The MMPI-2 is among the most commonly used psychological tests in the world. It has numerous indices to detect inconsistent responding, defensiveness, exaggeration, or feigning. Unfortunately, some of the most sensitive and commonly used validity scales perform quite differently across varying settings and populations, so that the cut scores that are most effective at separating the honest from the feigning have differed from study to study. Recent meta-analytic studies that combine the results from dozens of well-conducted studies have identified two scales—F(p) and Ds—that discriminate well and show consistent cut scores across populations and studies. Claims examiners may wish to ask forensic experts to comment specifically on claimant’s scores on those scales.
The Structured Interview of Reported Symptoms (SIRS) is considered the “gold standard” for detecting malingering of severe mental illnesses, such as psychosis and PTSD. However, no study has been conducted to demonstrate if it is capable of distinguishing simulators from legitimate PTSD patients. Legitimate PTSD patients with severe and bizarre symptoms are at risk of being falsely identified as malingering.
Unfortunately, a recent comprehensive review of the scientific literature on the assessment of malingered PTSD found that empirical investigation is still in its infancy. There is no method or single instrument that is recognized universally as being the best for detecting malingered PTSD. There also is no test with acceptable sensitivity and specificity for PTSD that has validity scales that effectively detect malingering.
Specialized Tests of Poor Effort or Intentional Failure on Neuropsychological Assessments
Many neuropsychologists naively believe that they can detect malingering of cognitive deficits through analysis of the pattern of deficits on the numerous tests that make up a typical assessment battery. In one of the leading clinical psychology journals, a classic study published by some of the founders of neuropsychology established that neuropsychologists couldn’t detect malingering of cognitive deficits at a level much better than chance without the use of specialized tests. One subsequent study found that not one of the participating 42 neuropsychologists could identify the profiles of children instructed to malinger cognitive impairments, though the clinicians expressed high confidence in their erroneous findings.
The impact of feigning or poor effort on the results of neuropsychological tests is profound. Recent research has found that effort accounts for more than half the variance in neuropsychological test scores, a much higher percentage of the variance than injury severity. Persons who put forth good effort scored better than persons who did not, regardless of the severity of the actual injury. The domain most affected by effort was memory and learning. People with mild head injury who failed effort tests scored 3.6 times further below the normal mean score than those in the known cerebral impairment group when assessed as part of a compensation claim.
Since these seminal studies, many tests have been developed to detect malingering of cognitive impairment. Yet many experts fail to use them. Many continue to use tests that were long ago shown ineffective in detecting feigners because of the ease of administration or low cost. One common example is the Rey 15 Item Test, which consists of a 3 x 5 array of numbers, letters and shapes in sequence. Several studies have shown that the Rey test lacks the ability to detect malingering (i.e., sensitivity) and distinguish genuine impairment (i.e., specificity). Its continued popularity and acceptance is not supported by scientific research since it detects malingering only when the claimant engages in blatant feigning of memory impairment.
The best-validated instruments currently available to detect malingered cognitive impairment are:
- Test of Memory Malingering (TOMM)—Uses pictorial stimuli. Widely respected and unaffected by depression or other psychiatric conditions, but produces more false positives than other tests (i.e., falsely states a claimant is feigning).
- Word Memory Test—Uses verbal recognition memory to measure suboptimal effort, which is a broader concept than intentional malingering. More sensitive than the TOMM to feigned memory impairment for claimants in litigation. Produces very minimal false positives among a diverse range of groups (brain injured, depressed, children with fetal alcohol syndrome, schizophrenia, ADHD, Bipolar Disorder, Conduct Disorder, Oppositional Defiant Disorder, Learning Disabilities, various ages, and various reading levels at or above 3rd grade).
- Computerized Assessment of Response Bias—Uses computer administered visual number recognition.
- Portland Digit Recognition Test—Uses auditory number recognition.
- Victoria Symptom Validity Test—Assesses effort and feigning of memory complaints using a computer administered forced choice test of visual number recognition.
The neuropsychologist typically should employ at least two, preferably three, of these tests when assessing a claim of brain injury. Many neuropsychologists choose to administer the MMPI-2. Once complete, they then attempt to argue that the numerous validity scales on the test serve to measure effort and symptom feigning, but that those scales are irrelevant to the question of functional impairment from brain injury. The validity scales on the MMPI-2 only measure the claimant’s response style when answering questions about psychopathology (i.e., mental illness). They are not designed to detect malingering of cognitive impairment.
If multiple administrations of the same neuropsychological tests have been performed, comparisons between the results of the administrations can be highly informative. Scores at the second administration should be as high, or higher, than those at the first administration. This method requires, however, that the same tests be used at both administrations.