Malingering: Can it be detected?

One way of defining a good patient or plaintiff is a person who:

• Presents with objective signs and symptoms of a treatable injury.
• Makes no emotional demands upon the physician or attorney, such as uncomfortable displays of excessive emotion.
• Cooperates with the treatment process.
• Upon getting well, displays gratitude for the help received.

People who are accused of malingering after an injury do not meet the above criteria. When the strong words of “This patient is a malingerer” appear in a report prepared by the physician who performed the independent medical exam, the medical legal system is on the alert. What is malingering and how common is it? Can it be detected?

Malingering is intentional deceptive behavior, not a medical or psychiatric disorder. The diagnosis of malingering rests upon the identification of an external or “secondary” gain being present as the main motivation for the behavior. In other words, what does the person hope to gain?

Common motivating factors are:

• Avoidance of going to jail or release from jail, avoidance of work or family responsibility.
• Desire to obtain narcotics.
• Desire to be awarded money in litigation.
• Need for attention.

Related disorders
Attorneys may encounter terms in IME reports or those of treating doctors, which mention psychological disorders that are different from malingering.

Factitious disorder / Munchausen syndrome by proxy: This is a deliberate effort to produce physical or psychological symptoms in order to gain attention from the sick role. This individual will undergo painful treatment and surgery in order to obtain medical attention. The patient consciously produces symptoms, although the motivation to do so is unconscious. Occasionally the symptoms will be aimed at obtaining narcotics, but more commonly they are directed towards getting care and attention through hospitalization. Financial gain is not a motivating factor in this disorder. When a person creates illness or injury in another person, such as a mother making a child sick, this is Munchausen syndrome by proxy.

Hypochondriasis: The patient who is excessively preoccupied with bodily sensations or has unreasonable fears of illness is a hypochondriac. It is usually limited to one disease. They are usually reassured when they are given a label to which they feel entitled. Chronic fatigue syndrome and fibromyalgia syndrome have been recently used, and sometimes incorrectly, as labels that hypochondriacs find acceptable.

Conversion disorder: This is an unconscious disorder that produces pseudo physiological symptoms that help resolve a personal conflict. The symptoms or deficit is not intentionally produced or feigned (as in factitious disorder or malingering). The symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning. The classic Freudian example of this occurred when a son wanted to hit his father. His hand became paralyzed, which is the conversion disorder.

Somatization disorder: This person has multiple complaints involving various organ systems, which are not amenable to psychiatric treatment. This disorder is usually apparent by age 25 and affects more women than men with a ratio of 10:1. During the course of the disturbance, the person must have four pain symptoms affecting different sites, two gastrointestinal symptoms, one sexual symptom and one pseudoneurological symptom.

Pain associated with psychological factors: In this disorder, psychological factors are presumed to play a central role in initiating or maintaining the pain symptoms. The person actually feels pain in this unconsciously motivated disorder. Biofeedback and physical therapy are often useful treatment as they offer a face-saving way for the person to give up the psychological symptoms.

Clues for detecting malingering
Malingering is different than the above psychological disorders.

It can manifest in several ways:

1. A medical condition is fabricated, with or without the assistance of a healthcare provider (doctor, nurse practitioner, physician’s assistant, chiropractor, etc.) When this occurs, the patient claims to have a series of non-existent problems. The healthcare provider may be unsuspecting, accepting the patient’s complaints at face value. Rarely, the attorney or others may discover that the healthcare provider knowingly participated in providing treatment for a non-existent disorder.

2. A medical condition or injury that resulted from the incident is exaggerated for financial gain. Either the patient or the healthcare provider may do this. In this situation, the medical records contain evidence of over-treatment for minor problems. Examples include months of chiropractic treatment for low back pain or physical therapy without improvement. This is not to be confused with those patients who have legitimate serious injuries that fail to respond to conservative treatment.

3. The accident is staged so that the injury is deliberately caused. A common scheme is to include multiple alleged victims. All are cared for by the same healthcare provider, all have the same medical diagnosis, all have the same treatment plan and even have treatment on the same day. Malingerers are usually not willing to produce disease in themselves or undergo extensive painful diagnostic testing, treatment or surgery.

4. Physicians are taught that there is an increased risk of malingering when plaintiffs with significant financial stressors have filed a lawsuit or those who attribute all of their problems to the accident.

5. There is a marked discrepancy between the person’s claimed symptoms and the medical or psychiatric findings.

6. The plaintiff displays a lack of cooperation during the physician’s evaluation and noncompliance with treatment.

7. The plaintiff has an anti-social or borderline personality.

8. The plaintiff claims to have preposterous symptoms. The individual may consciously and intentionally fake poor responses on neuropsychological tests.

Additional suspicious factors:
1. The claimed injuries don’t match the minor nature of the accident. The classic and controversial example of this is the soft tissue injury following a low-velocity crash.

2. The medical record will have inconsistencies. Sometimes basic demographic information is wrong, or the description of the injuries keeps changing.

3. One or more of the plaintiffs have a post office box or a hotel instead of a street address.

4. The plaintiff may be overly directing in the treatment plan by requesting certain drugs, treatments or therapies.

5. The plaintiff may change doctors when the release for work is issued.

6. The plaintiff is excessively needy, demanding an unusually large amount of attention from the healthcare providers and the plaintiff attorney.

7. The plaintiff has a prior history of substance abuse. Medical records reveal evidence of drug-seeking behavior (described in further detail below.)

8. The physician has a pattern of over-treating patients. This provider’s patterns may be detected by comparison of treatment patterns with those of others in the same specialty. The attorney generals’ offices are increasingly targeting fraudulent practices of healthcare providers. In our managed care era, software programs used by insurance companies are identifying those who have received an excessive amount of treatment and then activating decisions to deny reimbursement.

9. The attending physician has informed the plaintiff that he or she is able to return to work, but the person fails to do so.

10. Treatment for the injury is begun more than three weeks after the accident.

11. The attending physician is treating the plaintiff for problems that are outside of the scope of his or her specialty area of medicine.

But can malingering be detected?
There is much emphasis on identifying malingering. Many individuals including physicians and attorneys believe they can diagnose malingering. Is it so simple? Rosenhan (1973) conducted a classic study in this area. Dr. Rosenhan had a series of people (pseudopatients) go to a psychiatric hospital and feign a single symptom. They reported hearing voices that said “empty”, “hollow” or “thud”. They were instructed to otherwise describe their mental state honestly without revealing their occupation or that they were part of the study. Some of the pseudopatients were mental health professionals. All of the pseudopatients were admitted to the hospital and diagnosed as having major psychiatric disorders.

Once in the hospital, they were to stop feigning any symptoms. Nevertheless, none of the pseudopatients were detected by the professional staff. At the time of their eventual discharge, their psychiatric diagnoses were not overturned. Their symptoms were said to be in remission. When Dr. Rosenhan’s results were challenged, he said he would repeat the study. Subsequently, a number of individuals were identified as Rosenhan pseudopatients. However, Dr. Rosenhan did not send anyone else to the hospital.

It is common to underestimate the knowledge, preparation, and skills of some malingerers. These people may gain access to textbooks describing medical disorders and also their examination methods; including those used to detect falsification of symptoms. Medical libraries are usually not closed to the public, making it easy for an intelligent person to gain information about a medical condition.

The plaintiff may suffer an injury and then go on to magnify or fake continuing difficulties. Extensive contact with lawyers, doctors, and even other patients can provide superb training in the symptoms associated with a real disorder. When the stakes are high, malingerers may go to great lengths to pull off acts of deception.

Research suggests that laypeople and professionals from a variety of disciplines such as psychology; medicine and the law are poor at identifying lies. Seeing the person face to face as opposed to reviewing records does not necessarily aid in the detection of malingering. Many studies have raised doubts about how easy it is to detect malingering. The true incidence of malingering remains largely unknown. Could it be that the discomfort we feel with the idea that a person would fake illness explains the few medical articles written on this topic?

Consider these points when facing the issue of malingering:
1. Review the medical records to see if a neuropsychologist or psychologist has evaluated the patient. Testing may include the Minnesota Multiphasic Personality Inventory (MMPI). The MMPI-2 has an F scale that is called the malingering index. It addresses symptoms that are stereotypically associated with serious psychopathology but are rarely found in patients with serious disorders. Look at the conclusions of the report to determine if any comments were made about the F scale. The F-K score is another potentially useful indicator touted as having the ability to distinguish malingerers from non-malingering subjects. The Lee-Haley’s Fake Bad Scale, a unique combination of MMPI test items, has been investigated specifically for the purpose of identification of faking of emotional disorders.

Review medical records to determine if the health care providers suspected malingering. Suspicions may be voiced in office notes or correspondence. Commonly observations include:

• The patient is seeking secondary gains
• There is over-reaction to examinations
• The patient has a functional overlay
• The symptoms are not organic in nature

2. Sometimes the comments of the physician are difficult to interpret, as in this sentence found in an IME report: “The multiple responses by this patient to investigative stimuli indicates that there remains at this time a large supratentorial magnification of mild to moderate low back symptoms potentiated by sympathetic mendicants and external morbidizing factors.” This is a convoluted way of saying that the patient’s symptoms were in her head and were worsened by her medications and factors that kept her in the sick role.

3. Look for evidence of drug-seeking behavior. This may be manifested in a number of ways. The plaintiff may make frequent visits to the emergency departments asking for narcotics. The drug-seeking patient claims to have lost prescriptions before or after they were filled or asks the doctor for increasing amounts of pain medications. This individual makes unannounced visits to the doctor’s office requesting pain medication, and obtains prescriptions from more than one healthcare provider without informing the other treating doctors of prescriptions received from someone else. The patient may also frequently switch doctors, looking for the perfect supplier of drugs.

4. Do not let subjective confidence in your ability to detect malingering be your guide. The successful malingerer rarely confesses after fooling us. The individual we have falsely called a malingerer is unlikely to convince us otherwise. Overconfidence leads to premature conclusions, insufficient data collection, and failure to make appropriate decisions. The word malingering is an accusation of fraudulent intent, which must be sustained by the evidence. A false diagnosis of malingering constitutes a grave injustice to the patient.

5. Consider having surveillance videotaping performed. Both defense and plaintiff attorneys have used this strategy to answer questions about the plaintiff’s capabilities.

6. Seek information from other sources. Carefully review the medical and employment records for inconsistencies. The person who claimed proficient academic skills before the accident may have had trouble spelling basic words when filling out a pre-accident job application. The patient who shows the marked weakness of both arms may have bragged to the recreational therapist about recently setting a record high score in bowling. The more thoroughly one reviews the background records, the greater the opportunity to spot contradictions.

7. Recognize that the detection of malingering can be extremely difficult.

Resources
Hall, H. and Pritchard, D. (1996), Detecting Malingering and Deception, Boca Raton, FL: St. Lucie Press

Rosenhan, D. (1973) On being sane in an insane place. Science 179:250

Schafer, S. and Nowlis, D. (1998, March/April), Personality Disorders Among Difficult Patients, Archives of Family Medicine, Vol. 7, 126

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