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Traumatic Brain Injury and Malingering

As a traumatic brain injury lawyer, I frequently encounter the defense contention that my client is malingering. Malingering is a term used to describe an individual who is exaggerating or outright faking their symptoms of traumatic brain injury (TBI). Traumatic brain injury can occur when an individual is struck in the head either as a result of a car accident, explosion, or fall. TBI is increasingly common and frequently underdiagnosed. Often, health care providers delay in making the diagnosis because established protocols do not exist for making the diagnosis in an acute setting, like an emergency department or acute care center. Often, primary care physicians are simply uneducated and unequipped to diagnose the condition. So, individuals with cognitive dysfunction as a result of traumatic brain injury may not be diagnosed for several weeks or months after an accident. This raises the eyebrows of defense lawyers who seek to prove that the individual has faked the condition or is exaggerating its symptoms.

To assist defense lawyers in this regard, neuropsychologists, the subspecialty of psychology that specializes in evaluating individuals with traumatic brain injury, have developed tests meant to expose malingering. These tests are full of problems due to malingering being raised in virtually every single traumatic brain injury case. The malingering tests have not been fully vetted. Further, test manufacturers and defense neuropsychologists profit from the use of such tests in litigation to fight allegations of disability associated with traumatic brain injury.

The incidence of malingering has been dramatically overestimated. Given the interest of the insurance industry and defense neuropsychologists, a definition of malingering has worked its way into mental health literature. Malingering is defined according to 3 diagnostic criteria: “(a) clear and compelling evidence of volitional exaggeration or fabrication of cognitive dysfunction, (b) evidence strongly suggestive of volitional exaggeration or fabrication of cognitive dysfunction and (c) evidence suggestive of volitional exaggeration or fabrication of cognitive dysfunction when other primary etiologies i.e. psychiatric neurological or developmental factors could not be ruled out.”

In diagnosing malingering, defense neuropsychologists often point to the presence of secondary gain, which is an external incentive such as money or sympathy that motivates malingering. However, not everyone who is injured and facing litigation will exaggerate. In fact, there are many disincentives to malingering, including honor, pride, and a desire to get back to a normal state. There are also economic disincentives to malingering, such as job loss.

There are limitations to malingering tests as well. For example, tests will produce faulty results if the individual is anxious, depressed, or fatigued. Individuals with low IQ or cultural or language barriers may also be over-diagnosed as malingering. Finally, individuals who are skeptical of the defense neuropsychologist have an incentive to perform poorly on neuropsychological testing, thereby potentially activating malingering scales. An individual who truly believes that they have cognitive impairment may seek to prove it by taking certain actions in the course of testing to show their limitations. Distrust of the defense neuropsychological examiner alone can lead to faulty results. Further, malingering can occur concurrently with actual brain injury.  Finally, like with any test, false positives and false negatives are inherent.

Because malingering testing has not been proven to be scientifically valid and due to all of the inherent bias in such testing, it should not be allowed in the courtroom. However, as a brain injury lawyer dealing with traumatic brain injuries, I know that I will face these tests in every case.

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