Defense experts using controversial 'malingering' test

Defense experts using controversial 'malingering' test
By Sylvia Hsieh


Staff writer
Published: April 7, 2008


A controversial test that is supposed to detect "malingering" is gaining popularity among defense experts in personal injury, workers' compensation and other cases.

The "Fake Bad Scale" is being offered by medical experts as evidence that plaintiffs are fabricating or exaggerating their pain or other medical symptoms.

Critics attack the test's validity, and claim it is biased against women, the disabled and victims of post-traumatic stress.

A few courts have ruled on the admissibility of the test, including three Florida courts that excluded testimony about it last year.

In one of those cases, a trial judge in Hillsborough Country, Fla. ruled after a Frye hearing that the test was "not an objective measurement of effort, malingering or over-reporting of symptoms" because there was no manual for administering or scoring the test. It also held that the name "fake bad scale" is itself "pejorative and derogatory and thus prejudicial." (Williams v. CSX Transportation Inc., No. 04-CA-008892.)

The test is still relatively unknown among the plaintiffs' bar, but attorneys who are following the issue say the test is often used in workers' comp cases. More recently, it has appeared in suits brought under the Defense Base Act involving contractors who claim post-traumatic stress after returning from Iraq or other military assignments.



How the test works

The fake bad scale was created in 1991 by Dr. Paul Lees-Haley, a neuropsychologist in Woodland Hills, Calif. who testifies as an expert witness for the defense.

The test has gained traction in defense circles because it was recently included by the University of Minnesota as one of the scales in its MMPI-2 personality test.

The fake bad scale is a series of 43 true or false questions such as "I have very few headaches," "I have nightmares every few nights" and "My sex life is satisfactory."

Each response of a symptom adds a point toward the total score.

A total score of 23 out of 43 would be considered a "high score" and should "raise suspicions of over-reporting of symptoms," said Dr. Manfred Greiffenstein, a proponent of the test. He added that it would be virtually impossible for anyone who is not exaggerating to score 30 or higher.

However, critics note that the cut-off score has changed. The author previously recommended a cut-off of 20, while others have suggested a cut-off score of 26 for women.

Greiffenstein acknowledged that the test is scored on a "sliding scale."

A leading critic of the test, Dr. James Butcher, PhD, a senior author of the MMPI-2 and a professor at University of Minnesota, said that the fake bad scale does not meet the standards set by other MMPI-2 scales and "greatly overestimates" malingering.

In one study, Butcher tested over 2,000 women in a care center for eating disorders and found that 44 percent would have been misclassified as malingerers using the 23 point cut-off score.

He also criticized the test for not taking into account gender-based norms, noting that, for example, women in the general population report more headaches than men, as well as hot flashes, another question on the fake bad test.

Just because women report more symptoms "does not mean that women are more likely to malinger than men," Butcher said.



Admissibility arguments

Plaintiffs' attorneys are just beginning to attack the test in court.

Richard Berman, a Fort Lauderdale, Fla. workers' comp attorney, represents a teacher with several injuries who is not seeking monetary compensation, but requesting that her psychiatric care be reinstated.

"The defense expert testified in his deposition that based on the fake bad scale … my client was faking," said Berman. He stated that his client, a woman in her 40s, was unfairly penalized by questions on the test that give points toward faking for honestly answering questions related to anxiety, depression and hot flashes.

At a Frye hearing scheduled for April 28, he will argue that the fake bad scale lacks scientific validity, is gender-biased and takes issues of credibility away from the fact finder.

"In order to pass the Frye test, [a test] must be not controversial and be based on scientific validity. This test is highly controversial, and how can it be valid if you don't have a protocol or a cut-off score that stays the same?" said Berman.

Leopoldo Garcia, a Miami attorney who heads the workers comp' division at Angones, McClure & Garcia and is defending the case, said the test should be allowed in and then subject to cross examination.

"There are a lot of psychologists who believe [the fake bad scale] merits being used. It's been around for years and has been used all over the country," he said, noting that six of eight panel members believed it merited inclusion in the MMPI-2.

Attorneys who handle brain injury cases have also been active in challenging the test's admissibility.

"People with brain injuries have problems with attention, concentration, memory loss, depression and fatigue, so they would legitimately have a high score," said Bruce Stern, an attorney at Stark & Stark in Lawrenceville, N.J., who has lectured about the fake bad scale.

Michael Phelan, an attorney at Butler, Williams & Skilling in Richmond, Va., said he represented a 57 year-old woman who failed the fake bad scale even though a car collision left her with a broken leg and brain swelling that required cutting open her skull.

"The test …invades the province of the jury. From a common-sense perspective, if a person is truly disabled by either physical and/or psychological injuries, you can't take the test and not fail it. The result is to be categorized as a faker," Phelan said.

His case settled in December 2007 for $3.5 million, after mediation.

He noted that his client passed the other MMPI-2 scales for malingering.

Questions or comments can be directed to the writer at: sylvia.hsieh@lawyersusaonline.com
Defense experts using controversial 'malingering' test
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Just what veterans need another thing to worry about when filing a PTSD claim, to be accused of malingering, is this another way to keep the soldiers and veterans from filing PTSD claims, if the government starts prosecuting veterans for "passing or is it failing" this new test that is designed to make it appear malingering if you complain of to many of the symptoms.

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