© James Publishing

THE BOTTOM LINE

TESTSMALINGERING

Defense medical experts will try to discredit your client with so-called “tests” to show that they’re malingering, or exaggerating their symptoms. But these tests are subjective, and inconsistent.

Here’Here’s the bottom line on malingering tests:

Malingering tests aren’t created using actual verified and confirmed malingerers. Rather, these tests often are created using college students who are told to simulate malingering or exaggerating behavior.

This is not scientific. Moreover, in many instances, we don’t know enough about a particular test to rely upon it. For example:

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Was this test confirmed by blind peer review?

How was bias accounted for in the administration of these tests?

WWas the patient given this test in a 2-day grueling neuropsychological battery like your client, or for only 30 minutes?

HoHow many in the sample took this test? If you are dealing with a few dozen people, that’s probably not enough to draw a conclusion.

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No malingering test explains why your client did poorly, so to conclude the only reason must be malingering is to exclude multiple other potential causes, none of which the defense medical experexpert asked about or discussed with the patient. These other potential causes include:

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The effects of medication;

The effects of pain;

The effects of depression;

The effects of anxiety (e.(e.g., at being sent to a doctor the patient knows does not have his best interest at heart).

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Until that data is produced, it is inappropriate to classify your client as a malingerer. It is nothing more than pure speculation. Certainly, intentional misrepresentation can be a possible explanation of a poor score, but it cannot be the only possible explanation.

DMEs will say “studies show” that pain, depression, etc., do not account for the poor score earned by your client on a particular test, but there are probably no studies that account for how someone with your client’s education, and physical and emotional injuries woulwould approach the test.

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The tests are used selectively. DMEs rarely will claim that a person who is obviously impaired, or a child, or a very elderly person, or any other sympathetic plaintiff is malingering, even when they flunflunk these types of tests. Why?

Because it makes the DME look like a jerk. Sympathetic plaintiffs - grandmothers; firefighters or cops - flunk multiple measures on effort, and the DME still gives them a free pass.

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If these tests are scientific and reliable, then those cops, firefighters, and grandmothers are all a bunch of liars. The only other conclusion is that these tests are unreliable. The rules apply to everyone or no one - - except when a bad DME is administering and/or interpreting the test.