Spotting the Malingerer: Identifying malingering plaintiffs

September 15, 2011

Healthcare

Malingering is not a diagnosis!

When clinical findings and circumstances exclude all other reasonable possibilities, clinicians suspect malingering.  But a diagnosis can often be attacked on the witness stand because it isn’t really a diagnosis and the requirement of intent by the patient is difficult to prove. Experienced clinicians just write a conclusion like: “Symptoms inconsistent with (or unsupported by) clinical findings.”

Other examples of language implying malingering are: “functional disorder,” “non-organic symptoms,” and “non-anatomical symptoms.”  Almost all clinicians recognize this language to mean “malingerer.”  See § 25: 44 of Attorneys Medical Deskbook, 4th for an extensive list of similar terms.

So what is malingering?

Malingering is intentionally feigned illness or exaggerated symptoms for external motives.  “External” means: financial benefit (litigation, insurance claim, etc.), avoiding work, avoiding unpleasant situations (like criminal prosecution), obtaining abuse drugs, or having an excuse for failure.  It’s also popular among ex-spouses seeking spousal support.

If the motives are “internal,” it’s not malingering.  It’s called “factitious disorder,” and the motive may be to fill a psychological need like getting attention.  An example is Munchausen’s syndrome.  Many of the signs of malingering described below are not found in factitious disorder.

Spotting malingerers.

Review of the medical records may show: (a) an inconsistent medical history, (b) physical findings that don’t support the patient’s symptoms and behaviors, (c) the patient always refuses diagnostic studies and treatment, (d) there is some external incentive for having a disorder, (e) a positive functional disorder test (see list in § 25: 43 of Attorneys Medical Deskbook, 4th), (f) grossly exaggerated symptoms, (g) symptoms that aren’t typically found together, (h) an apparent emotional state (“affect”) inconsistent with the patient’s symptoms, or (i) a positive score on a malingering rating scale.

Medical witnesses often fail to report these signs to attorneys.

Psychiatric malingerers.

Psychiatric malingering is often used to increase damages in civil cases, and used by criminal defendants trying to avoid trial or get hospitalized to stay out of jail.

Spotting psychiatric malingerers.

There are many additional clinical signs often found in psychiatric malingerers. Some of these should be apparent to vigilant attorneys. Psychiatric malingering may be present if the patient:

a. Claims to have a delusion that: first started suddenly (when needed), is inconsistent with the patient’s actual behavior, is bizarre even though the patient’s thinking is clear and coherent, or to which the patient eagerly draws attention.

b. Claims to have hallucinations that: first started suddenly (when needed), are described vaguely, or occur continuously (instead of intermittently). If they are auditory hallucinations, they use stilted language and are always obeyed when they command action. Visual hallucinations appear in black and white.

c. Has a violent lack of impulse control (such as attacking other inmates/patients), refuses to participate in interviews with clinicians, claims a mentally traumatic event during childhood that caused “psychosis,” or claims loss of all memory (scoring lower on memory tests than patients with brain damage).

For a discussion of malingering, see Attorneys Medical Deskbook 4th, §§ 25: 41.1, 41.2.