Lou Michels and Rod Satterwhite are partners in the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.

Thursday, March 13, 2008 - Posts

Faking It

    The Wall Street Journal recently discussed a psychological test designed to spot personal injury plaintiffs who are faking their conditions.  The test, known as the Fake Bad Scale (as opposed to a similar test for negligence, known as the "My Bad" Scale), is a variation of the well-known Minnesota Multiphasic Personality Inventory ("MMPI"), and, in fact, has been endorsed by and made a part of the MMPI regimen.  The test focuses on claimants who state that they have injuries, or are experiencing pain, with no or little discernible physical cause.

     Use of the test is apparently widespread -- one study found that it has been administered by 75% of neuropsychologists.  Coincidentally, these are often the people who appear as expert witnesses at trial for or against plaintiffs in assessing psychological impact of personal injuries.  The 43 true/false questions are integrated into the MMPI and then scored to see if there is an indication that the person is a malingerer. 

     The scoring differential between people who are known to be malingering, people who had been instructed to try to fake malingering, and the truly injured is fairly significant, at least according to the reported research.  People with a score above 20 on the 43-question scale are tending toward fakery.  For purposes of marking people as possible malingerers, the test administrators use a cut off of more than 23 points.

     Of course, the test is under attack by the personal injury plaintiffs' bar, as well as some psychologists.  At least one court has tossed the test results out as evidence, although the court's analysis seems suspect.  Specifically, the court looked at individual questions rather than the total question package, finding that a test that gives points for malingering when a plaintiff gives honest answers to questions based on actual injuries, was improper.

     Other researchers state that the test gives too many false positives, claiming that it was unlikely that so many patients could have fooled doctors into diagnosing them incorrectly.

     As somebody who has both used and challenged psychiatric/psychological testimony in court, I don't find it difficult at all to believe that large numbers of patients could fool mental health physicians or social workers.  The field is rife with inconsistent application of standards, overly subjective analyses, and incomplete investigations of patients' complaints.

      There's an interesting discussion of the issue, replete with comments from professionals, here, under the March 12 entry.             

     For a culture that embraces psychological analyses of all types, the idea that there would be substantial push-back to a test that might cut down on false claims is surprising.  But the pushback is also consistent with our natural inclination in this culture to refuse to confront unpleasant truths.