Malingered Mental Illness in Compensation Cases
| Author | Brian Hoffman and R.J. O'Shaughnessy |
| Pages | 1107-1136 |
CHAPTER 52
Malingered Mental Illness
in Compensation Cases
Brian Homan and R.J. O’Shaughnessy
I. INTRODUCTION
A central issue in litigation involving emotional traumas is knowing whether the history and symptoms
reported by the patient are exactly as described, or whether they have been fabricated, exaggerated, dis-
torted, or minimized in the interest of nancial gain.
According to the Diagnostic and Statistical Manual (DSM-I V-TR ) (APA, 2000), malingering should
be suspected in any litigation case in which compensation may be obtained for a psychological trauma
or injury. ere are few personal injury cases that reach the courts without an allegation of malingering
having been expressly stated or implied. Diculty does arise, however, if a physician assumes that every
litigant meets the criteria for malingering. Rather, each case should be assessed on its own merits for de-
ception, defensiveness, malingering, and false attribution, within the limits of the clinical examination.
Malingering is not classied as an Axis I or Axis II disorder, but was relegated to a special listing as
a V code — conditions that are not attributable to a mental disorder, but could be the subject of medical
attention.
Determining whether a person is malingering a physical or psychological disorder is a particularly
challenging undertaking. Our empirical knowledge regarding malingering in general is limited by con-
straints in research methodology. Most of the research in malingering is conducted with volunteers
asked to feign conditions, specically to test psychometric instruments or interview strategies designed
to detect exaggeration. Conducting research in real-world settings with actual litigants a llegedly feigning
disorders is rare. Much of the literature that describes malingerers is anecdotal and open to question, as
oen the determination whether a person is malingering is based solely on the opinion of the examiner
and may lack validation. More recently, there have been greater eorts at conducting empirical research
in the detection of malingering that have shown promise in achieving scientic standards. Although a
review of current research eorts to detect malingering is beyond the scope of this chapter, we will pro-
vide an overview of core knowledge to date, and for practical purposes, suggest approaches to assessment.
e incidence of malingering in litigation, workers’ compensation board (WCB), and disability cases
has always attracted speculation. Unfortunately, there are no clear empirically proven prevalence rates.
Virtually all articles that touch on or review the frequency of malingering are based on estimates by
groups of clinicians conducting forensic assessments. It is rare for a person caught malingering to actually
admit to the behaviour, even when confronted with sound evidence, such as videotaped surveillance
demonstrating, for example, the ability to do things he or she claimed unable to perform.
A further complicating factor in the forensic assessment of malingering is the confounding issue of
assessment of credibility implicit in malingering. By denition, malingerers engage in lying — fabricat-
ing or grossly exaggerating their symptoms. e assessment of credibility poses two problems for the
forensic clinician. e rst is the limited ability of clinicians to accurately detect whether a person is
lying (Vrij & Mann, 2003). e second issue is that in litigation, the determination of credibility is to be
made solely by the fact nder; if forensic clinicians wander into this protected area, they may nd their
Brian Hoffman and R.J. O’Shaughness y
opinions declared inadmissible. In this regard, the mere utterance of the word “malingering” in a report
may be seen as an attempt to usurp the judge or jury’s role concerning credibility. Deciding whether the
symptoms or condition at the centre of the litigation are true or fabricated is precisely the job of the trier
of fact. Nevertheless, forensic assessments demand particular attention be paid to issues of credibility
that may lead the clinician or referring lawyer to take further steps in the assessment process to elicit
evidence that can be presented to the court to assist in the estimate of a litigant’s credibility.
e oen dicult-to-dispel suspicion that a litigant is malingering, expressed in a report, can have
a powerful adverse eect, and may be one reason that explains why damages awarded for psychological
symptoms or disability are usually substantially less than those awarded for physical injury, even if the
reported level of mental disability is similar to the claimed level of physical injury. Physical injuries and
their sequelae are invariably more tangible and easier to prove or disprove than psychological damages,
which are loaded with subjective impressions. Although this may be somewhat of an overstatement,
psychological damages seem to come with more psychological baggage in a claimant’s background than
physical damages do.
Postulating malingering in a psychiatric or psychological damages case may consequently have an
even more prejudicial eect than doing so when the case involves physical injuries. e impact of mere
suspicion may, as some authors point out, be greater than that of the objective facts of a case (Barrois, 1986).
A number of studies have demonstrated that patients who are eligible for compensation following a
personal injury report signicantly greater severity of injury and impairment than those who are not eli-
gible and who are disabled longer. is relatively common occurrence may be better termed “symptom
exaggeration” than malingering. e determination whether it is truly malingering is oen based on the
extent of the exaggeration and on other factors that may or may not point to a more conscious element.
In a similar vein, some patients are predisposed through their personalities or characters to embellish
or magnify their symptoms and may, in fact, embellish those of their children for the sake of disability
benets (Cassar et al., 1996). A detailed discussion of symptom exaggeration falls outside the scope of
this chapter; for an expanded discussion of this phenomenon, however, see Halligan et al. (2004).
It should be noted that although a clinician may believe some evaluees are motivated solely by greed,
he or she must address the full range of clinical complexities and the various etiologies of the condi-
tions the patient presents within a compensation-claim context. A psychiatric assessment of individuals
making claims of psychological damage as part of a civil suit is oen sought to establish the veracity of
the claim. e psychiatrist will be asked to give an opinion whether the patient is malingering (which
requires the establishment of a conscious motivation), or whether the patient may have a mental health
issue such as a factitious disorder (unconscious motivation), or whether, in fact, there is no evidence of
such, and the claimant has a psychologically unfettered claim.
Clinical syndromes that commonly have some degree of dissimulation or deception include anorexia
nervosa, substance abuse, factitious disorder by proxy, and false memory syndrome. In this scenario,
the fabrication or embellishment of symptoms may be seen as a conscious or subconscious attempt to
amplify the urgency of the disorder and its need for treatment.
A claimant of an alleged injury may lie about the event, the other party, or about numerous aspects
of his/her longitudinal history and/or current functioning. Due to the highly subjective nature of symp-
toms of depression and chronic pain, it may be easier (and more credible) for the clinician to comment
on the claimant’s defensiveness during the assessment and on her inclination to attribute every diculty
in life to the event (i.e., false attribution), even to preposterous degrees, than to state that the claimant is
malingering. A detailed and critical eva luation, reecting a focused and penetrating approach, may, in
the end, raise numerous concerns about veracity that will assist the trier(s) of fact on the issue of cred-
ibility, without the expert needing to venture into the less certain zone of making a pronouncement on
“malingering.”
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