I hope you read past the title, because that was meant as a double entendre. The “Dangerous Deceit” is not that of the brain damaged person, but the deceit of the neuropsychologist who claims to be able to tell if someone is committing a fraud. At its core, to claim someone is a malingerer is to claim that they are lying. In most states, an expert is not able to testify that someone is lying. That is felt to be the province of the jury. Far too many plaintiff lawyers accept such claim at face value and do not challenge this claim with a pre-trial motion.
The more clever defense doctor will not go so far as to outright claim that a plaintiff has malingered, but suggest it, and then to base such suggestion on what the doctor deems to be inconsistent effort throughout the battery of tests. I discussed in my previous blog the problem that fatigue creates in interpreting neuropsychological results, especially claims that someone did not give best effort. If you progressively tire, you invariably will do worse on tests given later in a battery than earlier.
But a progressive decline in test performance is not the only pattern that can be expected in a brain injured person. In my way of looking at it, a significantly brain injured person can be expected to be inconsistent, because virtually every symptom of brain injury can affect how a person feels, thinks and reacts at any given moment. And that symptom can ebb and flow, both within a given test, across a test battery or from one day of testing to another.
Another common problem with malingering tests is that they are based upon the theory that such test is so easy that even a severely brain injured person would pass it. Well that has some superficial merit, but when they are talking about severely brain injured individuals, they are talking about someone who in most cases, had a focal injury that resulted in an increase in intracranial pressure, resulting in a coma. Such people often have a different set of problems, more severe in the focal area of their injury, but with not as severe of problems in other areas. One cannot assume, despite the logic of it, that a person with a severe brain injury will have a worse outcome than someone with a significant concussion. I have written for years about the Miracles and Tragedies of Brain Injury.
The third problem with malingering claims, is that they only look at the few tests in the battery that are considered malingering or effort tests, and ignore the dozens of other tests in the battery that require considerably more effort than the “effort” test. If properly designed, an effort test should look just like all of the others. So if a person was truly malingering, wouldn’t they do poorly on all the tests, not just the “effort” tests. Yet in every single case I have every heard a defense neuropsychologist raise the malingering specter, there were subtests by my client, and usually many, many subtests, where my client did extremely well. If they were malingering, why did they do well on these tests?
Bottom line, all malingering tests are fatally flawed because there is no actual research on people who actually malingered. The research that is done is done on experimental subjects who are told to pretend to be malingered. In my favorite malingering study, the instruction to exaggerate your claims, but in a way not to get caught, was given to an equal number of brain injured persons and non-brain injured persons. In this study, it was only the brain injured persons got caught. In all other studies, the pretend malingerers were instructed to “act” like a malingerer. But a true malingerer would not want to get caught. The realities are that the only time a malingering test is ever likely to catch someone for true exaggeration, it is likely to catch a brain injured person, because they lack the judgment to do it in a way they won’t get caught.