In any case involving mild traumatic brain injury (TBI) you are likely to run into one or more of the following defenses: Pre-existing emotional disorder; malingering; exaggeration of symptoms, negative neuro imaging; PPSD; substance abuse/previous injury; causation; and life expectancy.

This paper discusses generally how to deal with the defenses of malingering, secondary gain and personality testing.

Malingering is the defense of choice on most mild TBI cases. Simply stated, an individual who intentionally attempts to falsify or exaggerate symptoms for motivation, including secondary gain, or financial incentive, is a malingerer.

Clearly, the defenses motivation for use of the malingering defense is to establish that the victim or plaintiff is not worthy of a recovery.

Obviously, claims of malingering scientifically come from the defense experts, primarily including neurologists and neuropsychologists. Where, in addition to a closed head injury, a victim suffers from a chronic pain syndrome, myofacial pain, thoracic outlook syndrome, fibromialgia, or other less specific pathology, orthopedic and other medical specialists may testify as to potential malingering.

Medical experts are not the only individuals routinely called when the defense of malingering or secondary gain, or both, are asserted. Often times, investigators will be employed to gather Sub Rosa. A videotape of the plaintiff is a common activity on cases involving substantial claims. After all, if the plaintiff dances for a total of five minutes after experiencing two years of relentless pain, certainly that plaintiff must have been capable of working forty hours of week for each year elapsing since the onset of injury.

There are many ways to address unfavorable videotapes of the plaintiff. So too, are there many ways to address lay witness accounts of activity on the part of plaintiff inconsistent with a plaintiff's complaint of pain. However, given the multitude of different scenarios which can be contemplated, a full discussion herein is precluded by the scope of this article.

One of the most common tests used by psychologists and neuropsychologists in order to determine malingering is the MMPI/MMPI-2.

The MMPI/MMPI-2 is a test comprised of 567 questions. The test is not scored as a whole, but is grouped by scales representing conditions such as anxiety, hypochondriasis, and depression.

Despite that the MMPI and the MMPI-2 are commonly administered tests, in my experience, many "experts" mistakenly say that the higher the score within a scale, the more likely the alleged victim fits the scale. This is simply not true. For this reason, in order to impeach a defense expert relying on the MMPI/MMPI-2 test results to reach the conclusion that a client is malingering, it is absolutely essential that you get the raw test scores to your psychologist/ neuropsychologist. Your expert must score the dozens of scales, not just the basic thirteen.

The L Scale purports to identify liars. Again, the initial thought was that those intending to deceive or lie would score high within this scale. A quick review of MMPI-2 Manual reveals, however, that people intending to deceive may score in the low range, below 49%.

Accordingly, given the manual's position with respect to this test, it seems logical to ask a defense psychologist/neuropsychologist whether half of the people taking the test score below 50. Certainly 50% of the people taking the test are not liars.

The K Scale was designed to catch individuals who were crafty enough to "defeat" the L Scale.

The K Scale was designed to catch the smart ones who could "beat" the L Scale. Intelligent individuals capable of faking a psychological condition are thought to score low (40 and below) where high scores were thought to denote an individual in denial as to his/her condition.

Due to the design of the K Scale, however, it is thought that people from lower social economic backgrounds, with less education, typically score low all the time. Accordingly, the validity of the test scale itself must be placed in perspective.

The F Scale measures answers that are variant from those commonly given by both injured or non-injured individuals. The thought process is that if injured people rarely answer a question in a particular way, and your client answered in such a way, (thereby reaching a high score), then your client is malingering.

As has been frequently brought up, however, truly brain injured individuals may not understand the test at all, and most will almost always receive a high score on the F Scale.

(MMPI-2) Limited to the MMPI-2, this index is suspect as a result of the inability of the expert (no scientific basis) to dete_ining an appropriate cut off score. It is not uncommon for defense experts to utilize zero as the right cut off score. There has yet to be consensus, and some neuropsychologists have indicated that the cut off score should be as high as nine.

(e)Ego Strength Scale:
Since it is thought that low scores in this scale evidence extreme impai_ent, obviously if the corresponding injury is not significant, an expert will jump to the conclusion that the individual must be faking. However, the test was designed to measure a client's ego strength, not honestly and should be limited thereto.

(f)Subtle - Obvious Scale:
Through use of this scale, questions are sorted into two categories: "subtle" and "obvious". It is thought that on the "obvious" questions, people could clearly see that answering certain of the questions would be indicative of cognitive deficits, whereas it was thought it would be very difficult to fake the "subtle" questions. Note that there has been substantial disagreement as to the validity of the subtle - obvious scale. In fact, the committee that re-standardized MMPI considered disregarding these scales altogether. This point should be raised during examination of the witness. A concession must be gained.

(g)Gough Dissimulation Scale - Revised:
The thought behind this scale was that a group of non emotionally distraught/non-organic brain injured individuals were asked to pretend, via answers, to be disturbed. Again, the higher the score was to have meant emulation of a faker. Note, however, that this scale was discarded by the re standardization committee when the MMPI was revised.

(h)True Response Inconsistency Scale:
(MMPI-2) . Designed specifically for the MMPI-2, this is an experimental scale, though it is utilized with greater frequency today. The consistency of patient response is measured. This scale is interpreted in relation to other scales which may or may not reflect upon psychological disability.

(i)Fake Bad Scale:
(MMPI-2) . This scale was specifically built for litigation purposes. Simply put, the test purports to catch those individuals who exaggerate emotional distress (fake bad), and yet appear reasonable and honest (fake good). As with other tests designed specifically for the MMPI-2, there has been no peer review of this experimental test. Since it was designed for litigation, selective untested criteria have been utilized.

(j)F Back Scale:
This scale is utilized in conjunction with the F Scale. It, too, was designed for the MMPI-2, and has not been subject to peer review. The thought is that the answers from the questions on the front half of the test are compared with the answers on the back half of the test. The concept is that individuals who are prone to faking will do okay on the front half of the test but not so well on the back half of the test. Accordingly, if the F Back portion of the test is low, malingering is suspect.

Given the rather imperfect methodology employed in utilizing personality tests to determine whether an individual is malingering, or has secondary gain motivations, counsel must be cautioned to strictly examine any expert relying solely on personality tests in order to determine this issue. Most fair minded neuropsychologist/neurologists will cede that personality testing can only give clues as to the real motivational forces driving a particular plaintiff.

Obviously, there are cases in which individuals are driven by secondary gain and are malingerers. However, you will know it when you represent such an individual. The fact of the matter is that there are wide differences of opinions between neuropsychologists/ psychologist about the validity of personality testing. When all treating doctors concur that the plaintiff is genuine, that no malingering or secondary gain motivation exists, then counsel must prepare for a complete analysis of all test data utilized by the defense expert in order to conclude that malingering is present.

 

 

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