Some Implications of Failure to Rule out Malingering

I recently conducted a medical records review of a Worker's Compensation in order to determine if the injured worker in fact suffered from PTSD and Pain Disorder as a result of an industrial accident.

There was only one report in the file I was given for review that contained a clinical psychiatric examination of the injured worker. In that report, based on the clinical interview, the psychiatrist diagnosed Posttraumatic Stress Disorder but did not address or rule out the question of malingering. According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), malingering should always be ruled out prior to assigning a PTSD diagnosis.

Several months later, the same injured worker was sent to another psychiatrist who conducted a medical records review without a clinical interview. The second psychiatrist agreed with the earlier diagnosis of PTSD and added a diagnosis of Pain Disorder Associated with both psychological factors and a general medical condition.

As a result of the first psychiatrist's failure to rule out malingering, and the second psychiatrist's assignment of a Pain Disorder diagnosis without any assessment of malingering in the file, I wrote in my report that I could not be sure the PTSD or Pain Disorder diagnoses could be substantiated.

The lessons here are as follows:

1. Plaintiff's attorneys should be careful not to accept, without some scepticism, the notion that their client's diagnosis of PTSD is genuine and adequately documented when malingering has not been ruled out. I have written elsewhere that psychological testing rather than interview is needed to rule out malingering. Failure to obtain a clinical exam in which malingering has been ruled out can help to avoid unpleasant surprises at deposition or trial.

2. Personal Injury and Worker's Compensation defense attorneys and insurance companies should require that an assessment of malingering be conducted as an essential element of all psychological evaluations and especially those in which diagnoses such as PTSD and Pain Disorder are alleged. Failure to do so may result in unnecessary awards and benefits for mental disorders that have not be adequately documented.

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When Documentation Fails to Support Psychological Disability

I often review medical records as a part of my evaluation of an individual claiming mental impairment in disability cases involving mental disorders such as Panic Disorder, Posttraumatic Stress Disorder and Major Depressive Disorder . The purpose of this post is to discuss one type of error, made by doctors who examine or treat disability claimants, that can lead to incorrect conclusions. This error involves an assumption that if an individual reports psychological symptoms, that individual is disabled and cannot work, even in the absence of corroborating evidence of the symptoms and impairment of the claimant’s functioning.

It is, unfortunately, quite common for me to review reports that will contain statements like the following as sole corroboration of a mentally disabling condition:

• She has nightmares
• He is struggling with significant symptoms of depression and anxiety
• The claimant made several errors on a “Serial Sevens” task

Having nightmares does not necessarily preclude an individual from working. When I met with this claimant, I learned that the nightmares had been occurring only once per two months and that the claimant last had a nightmare six months before I met with her. I also learned that the nightmares did not prevent the claimant from sleeping 8 hours per night.

Symptoms of depression and anxiety are common manifestations of a variety of mental disorders. But, symptoms of depression and anxiety can also be expressed by individuals with mild mental disorders and by those with no mental disorder at all. In reviewing records in a disability claim, I often read psychotherapy progress notes indicating that the claimant was observed to be anxious or that he exhibited symptoms of depression. The psychotherapist may then conclude that the claimant is disabled and cannot work at all at his usual occupation or any occupation. Yet, the report did not provide examples of behaviors exhibited by the claimant demonstrating that the symptoms interfere with usual functioning in such areas as daily activities or social relationships, or that the symptoms precluded work.

In order to identify mental processing problems, some mental health professionals utilize a task in which the claimant is asked to subtract numbers from another number or spell certain words backwards. On the basis of errors on such tasks, a claimant was described as totally disabled for all work because of impairments of attention, concentration and memory. Yet, this claimant’s cognitive functioning was normal, except for the problems noted, and was not precluded from working as a result of cognitive impairments. Clearly, a problem in counting backwards or spelling a word backwards does not prevent an individual from working in all occupations.

CONCLUSIONS: I often note that medical documents purportedly demonstrating disability do not include objective findings that substantiate mental impairments that preclude work. It is not enough to describe the claimant’s subjective report of psychological symptoms or to state that a claimant is anxious or depressed. In order to prove that a claimant cannot work in any occupation, treating or examining doctors must provide up-to-date clinical findings, backed-up by behavioral observations or psychological test data that document mental impairments that result in significant loss of capacity to function.

Dr. Clayman practices forensic and clinical psychology in Boston, MA, USA. He can be reached at 617 782-8355. More information about Dr. Clayman's areas of expertise can be found at his website by clicking on the Articles button.

Reading the Expert’s Psychological/Psychiatric Report

As a part of my independent psychological evaluation of a claimant in a disability, worker’s comp or personal injury case, I am usually asked to review an examinee’s medical records as well as to conduct my own examination. The purpose of reviewing the medical records is to identify objective findings that I can use, along with my interview and tests, as the basis for my opinion about whether an examinee has a mental disorder or not and how severe that mental disorder might be. Because benefits may be available if a claimant is found to have a mental disorder, I also use tests that can identify whether or not an examinee has exaggerated or minimized psychological symptoms.

By “medical records” I mean treatment progress notes as well as reports that are based on psychological or psychiatric evaluations.

The purpose of this entry is to provide you with a few tips that will help you to evaluate the authenticity of diagnoses found in psychological and psychiatric medical records in disability, worker’s comp and personal injury suits.

Mental disorders are defined by specific criteria which are found in the DSM-IV. Doctors don’t always document the full criteria of the mental disorder they diagnose. I notice this is especially true in psychotherapy and psychopharmacology notes. For instance, a doctor might indicate in the treatment notes that the patient was involved in an accident and presents with nightmares and, on the basis of this information alone, assign a diagnosis of PTSD. Although the patient may in fact meet the full diagnostic criteria for PTSD, the problem is that these symptoms, by themselves, do not meet all the diagnostic criteria for PTSD and the diagnosis can be challenged on that point.

Doctors sometimes draw conclusions that are not supported by their interview or test findings. This is related to point #1. I recently reviewed a report in which the psychiatrist administered a psychological test measuring depression, found the results to be normal, yet, despite this test finding, assigned a diagnosis of depression to the examinee. When there is a discrepancy between test findings and the diagnosis, there should be an explanation for that discrepancy. This doctor did not provide an adequate explanation. I would challenge the credibility of the diagnosis in my written review of these medical records.

Who did the actual psychological testing? Psychological testing, unlike psychotherapy treatment, is the unique skill of clinical and forensic psychologists. Other professionals, even within the field of mental health, rarely conduct psychological tests. Occasionally, other professionals will administer or utilize psychological testing and this will sometimes result in errors in test selection, administration and in the use of the test results. For instance, I was retained by a lawyer to examine an individual and review the reports of two psychiatrists who had previously evaluated the same individual. I noted that one psychiatrist had administered the MMPI-2 test and sent the test sent to a lab for scoring and interpretation. The lab then produces a narrative (text) report. The narrative report from most labs is clearly identified as consisting of “hypotheses” to be tested against the data from the clinical exam. The narrative report does not provide information pertaining only to the individual who took the test and is not considered to be data. The psychiatrist, perhaps unaware of the nature of the narrative report, then incorporated large sections of the narrative MMPI-2 report into his own report. The second psychiatrist read the laboratory produced narrative report of the MMPI-2 test administered by the first psychiatrist, also incorporated large sections of text from the narrative report and did not make it clear that he had not, himself, administered the report. When a professional who is not trained or not well-experienced in the use of a psychological test uses that test, the risk of error in the administration or interpretation of the results of that test is increased.

The expert fails to consider malingering: Posttraumatic Stress Disorder (PTSD) is diagnosed in some disability, worker’s compensation and personal injury claims when the claimant has experienced a stressful event. According to the DSM-IV, malingering must be ruled out in those situations involving financial incentives. Yet, I very rarely see any mention of malingering or an attempt to assess for malingering in psychotherapy treatment notes even when the psychotherapist has diagnosed PTSD and is aware the patient has a legal claim in which PTSD is an issue. More surprising to me is when a psychologist or psychiatrist, conducting an IME within the context of a legal case, fails to mention or attempt to determine if there if exaggeration, faking or malingering. A PTSD diagnosis in a legal case should be challenged if malingering has not be ruled out.

Stuart J. Clayman, Ph.D. is a licensed psychologist who conducts forensic and clinical examinations in disability, worker’s compensation, employee-employer and personal injury claims. Dr. Clayman can be reached at jay@braindoctor.org or at 617 782-8355. More information is available at Dr. Clayman’s website: www.braindoctor.org

Can Coached PTSD be detected with the MMPI-2?

I often find that the diagnosis of Posttraumatic Stress Disorder (PTSD) has been assigned to claimants in disability, personal injury and worker’s compensations cases. My experience is that many claimed instances of PTSD are genuine though some are exaggerated or faked.

The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) specifically states that malingering must be ruled out before the diagnosis of PTSD can be made.

Psychologists, aware that some litigants may exaggerate or fake psychological disorders such as PTSD, have developed psychological tests containing special scales or strategies that are used to detect faking. One such test is the Minnesota Multiphasic Personality Inventory, also referred to as the “MMPI-2”. The MMPI-2 contains special “validity scales” that have been scientifically shown to be effective in detecting exaggeration or faking of psychological symptoms. The MMPI-2 is probably the most often used measure of psychopathology that also assesses malingering.

An important question is whether tests, such as the MMPI-2, can distinguish between faked and genuine PTSD when test-takers are given specific information about PTSD and about the MMPI-2.

How do litigants obtain information about PTSD? One way that litigants may learn about PTSD is through exposure to the media. There are more articles in the newspapers and on TV about PTSD today than in past. This may be especially true at the present time, during a war, because combatants may be exposed to severely traumatic situations that can potentially cause mental disorders such as PTSD. In addition, the specific diagnostic criteria for PTSD and a variety of other information about this disorder is available on-line. Some litigants may also learn about PTSD and specific techniques to improve the chances of successful faking PTSD from their attorney. In a study of 70 practicing attorneys and 150 law students conducted in 1995 and published in Professional Psychology: Research and Practice, Wetter and Corrigan found that more than one-third of law students and almost one-half of lawyers believed they were responsible “to inform the client of scales on psychological tests that are designed to detect exaggerated or faked responses”.

Utilizing MMPI-2 scales to distinguish between faked and genuine PTSD among research subjects: Coaching subjects about the symptoms of PTSD or about the validity scales contained within the MMPI-2 has been employed in investigations of whether the MMPI-2 can distinguish between faked and genuine PTSD. Bury and Bagby published such a study in the journal Psychological Assessment in 2002. Investigators in this study randomly assigned 131 research subjects to one of four groups: “uncoached”, “coached about PTSD symptom information”, “coached about MMPI-2 validity scales” and “coached about both symptoms and validity scales”. Following the coaching instructions, subjects were asked to simulate PTSD on the MMPI-2 test. Results from the MMPI-2 tests of coached subjects were then compared to those of individuals who had developed genuine PTSD following workplace accidents. Results of this study were similar to those of previous studies which showed that giving research subjects information about the symptoms of a mental disorder (in this case, PTSD) did not help them to avoid detection as fakers. As in previous investigations, individuals who were taught about the validity scales demonstrated a degree of success in avoiding detection while faking a mental disorder (PTSD in this study).

Conclusions: The MMPI-2 validity scales demonstrate somewhat reduced capacity to identify faking when test-takers are provided with validity scale information. However, the Bury and Bagby study, which provided research subjects with specific information about avoiding detection by the Fp scale of the MMPI-2, showed that Fp remained effective in distinguishing between genuine and faked PTSD.

Recommendations: When insurers and attorneys are concerned that a claimant may be faking PTSD and, especially when there is reason to fear that a claimant may have been coached in techniques for malingering of PTSD, the MMPI-2 can be very helpful in differentiating between faked PTSD and the real disorder. For more information about PTSD and malingering, click on the “articles” button at my website.

Sailor Malingered Posttraumatic Stress Disorder (PTSD)

Men and women who serve in the US military can be exposed to extremely traumatic situations in combat and, sometimes, in non-combat situations. According to the Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition (DSM-IV), military combat is exactly the type of stressful event that can lead to the development of Posttraumatic Stress Disorder (PTSD). There are several other specific elements that are required in order to meet the diagnostic criteria for this mental disorder.

The DSM-IV specifically states that malingering should be ruled out in situations where an external incentive (such as disability benefits) can be obtained on the basis of PTSD.

Although the exact number of military service people who are not honest about their exposure to severe traumas is not known, it is reasonable to assume that the great majority of American servicemen and servicewomen honestly represent their exposure to traumas and the psychological symptoms which can result. However, servicemen or servicewomen may occasionally engage in malingering, the deliberate exaggeration or faking of psychological symptoms, in order to obtain external incentives.

One such incident of apparently malingered PTSD was reported by Brad Wong in the Seattle Post-Intelligencer on December 8, 2006. In this case, a former sailor acknowledged that he had purposefully faked symptoms of PTSD in order to obtain federal benefits in the amount of $174,000. The sailor admitted he was not being honest when he said he had seen a non-military worker drown after falling from a ship, that he had seen a member of the military die on the Golden Gate Bridge in San Francisco and that he had been thrown into deep water during his basic training and was unable to swim.

On the basis of these claims the Department of Veterans Affairs had awarded him about $134,000 and he had received an additional $40,000 in benefits from the Social Security Administration.

According to this article, the sailor is scheduled to be sentenced in 2007.

Standard psychological tests, such as the Minnesota Multiphasic Personality Inventory (MMPI-2) have been scientifically demonstrated to be useful in determining if an individual is engaging in exaggeration or faking of psychological symptoms, such as PTSD. The Trauma Symptom Inventory (TSI), another psychological test, was specifically designed to identify the pattern of symptoms that is consistent with PTSD and, like the MMPI-2, has validity scales that can be helpful in distinguishing between genuine and exaggerated symptoms of PTSD.

For more information about malingering, PTSD and psychological tests used to identify PTSD and malingering, please click on the "Articles" button on my website.

Malingering: A Growing and Costly Problem

The Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV) defines "malingering" as "...the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs."

In my practice as a clinical and forensic psychologist, I am often asked to consider whether examinees may have malingered psychological symptoms, such as PTSD or Major Depressive Disorder, in disability, worker's compensation and personal injury claims.

Malingering of psychological symptoms is a big and growing problem for those who pay for monetary benefits and treatment. The expansion of malingering and its associated unnecessary costs may be related to several factors such as decreased stigmatization resulting from acknowledging mental illness, increased availability of coverage for various forms of treatment for mental disorders and to an aversion by some mental health treating doctors to identify malingering by their patients.

Admitting to having a psychological problem does not appear to have the stigma attached to it that existed decades ago when treatment took place primarily in mental hospitals. As a graduate student in clinical psychology in the 1960s, I sometimes met patients who had been "locked up" in mental hospitals continuously for ten, twenty or thirty years or more. Receiving a diagnosis of a mental illness at that time could be, literally, a life sentence as a pariah. Psychiatric hospitals in those days were dark, noisy places with heavy locked doors. The keys to those locked doors were huge and often worn around staff members' necks. Forty years ago, psychiatric hospitals physically resembled prisons and there was little available in the way of what we now call "treatment".

Beginning in the 1960s, the Community Mental Health movement led the way to a major downsizing of mental hospital populations and the closing of many psychiatric hospitals altogether in the US. Instead of being treated in an inpatient setting, individuals needing mental health services would be treated in community mental health centers and often times in outpatient clinics.

In the 21st century, when psychiatric hospitalization is required because an individual is suicidal or dangerous to others as a result of a mental illness, the length of inpatient treatment is often measured in days or weeks rather than in months or years. The movement towards community mental health treatment centers "democratized" mental health treatment, placing treatment facilities within the communities they served rather than "up on a hill", far away from population centers. Most people today know of someone who is being treated for a mental disorder, or has had this treatment himself or herself. Acknowledging that one is being treated for a psychological disorder is, mostly, no longer a cause for shame. Today, in many circles it is considered acceptable or even fashionable to mention that one has a therapist or analyst. In my practice I occasionally see people who self-diagnose mental disorders for various reasons, one of which is to obtain benefits for which they might not otherwise be eligible. The personal costs, such as stigmatization, of making a claim for psychological damages in a disability, Worker's Compensation or personal injury case is not nearly as high as it would have been forty years ago.

The advent of modern psychiatric and psychological techniques may also be a factor in the increase of unnecessary costs paid for remediation or compensation for mental disorders. In my office in Boston I frequently conduct psychological evaluations of individuals receiving monetary or psychological treatment benefits who are suspected by the referral source of no longer having a disabling mental disorder or of having reached end result (maximum medical improvement) and are thought to be unlikely to obtain benefits, in the form of improved functioning, from additional psychological and psychiatric treatment. In Massachusetts, as in some other states, there is a mandated mental health benefit included in health insurance plans. If an individual has been in a motor vehicle accident, for example, and has become aware or has been advised that such a trauma can cause psychological symptoms, the accident victim may seek mental health treatment for those symptoms. Psychological symptoms alleged by the accident victim, such as nervousness or depression, may or may not be related to the accident. However, an individual may may attribute the emotional symptoms to the accident and seek treatment for those symptoms in order to substantiate or enhance a later claim for treatment and/or monetary benefits.

The ease with which an individual can access the mental health treatment system leads to consideration of a third factor that may contribute to the expansion of unnecessary costs for feigned mental disorders: the aversion apparently felt by some psychotherapists (psychologists, psychiatrists and social workers) to suggest that their patient may be malingering a mental disorder.

I have written several articles which discuss various aspects of the treating doctor's antipathy towards writing in their treatment notes the terms "faking", "exaggerating" or "malingering" in describing their patients. These documents can be found by clicking on the "Articles" button on my website. I spend a large proportion of my work day reviewing other doctor's psychological treatment records as a part of a psychological evaluation I am conducting. It is very rare to find a reference to exaggeration, faking or malingering in the psychotherapy treatment notes I review as a part of my evaluation. The reasons why references to "exaggeration", "faking" or "malingering" are nearly non-existent in treatment records seems to be rather straightforward. Psychotherapists tend to "bond" with their patients. Many psychotherapists proceed with treatment based on the idea that part of the psychotherapy treatment process is to empathize with the patient. Further, many psychotherapists attempt to enter into or acknowledge the patient's inner psychological world, no matter how distorted that world might be (think of a delusional patient) in order to treat that patient. Many psychotherapists believe that a suggestion that their patient may be malingering is a breach of the trust that is inherent in the psychotherapeutic relationship that would damage the relationship and impair the treatment process. As a result, a psychotherapist may unwittingly become a part of the process by which an patient, motivated to exaggerate or fake psychological symptoms, attempts to enhance the credibility of a claim of a mental disorder and the the likelihood of receiving compensation in the form of monetary benefits, avoidance of work or change in responsibilities.

With the advent of the internet and the resulting free flow of information about psychological tests, independent medical exams and information about how to fake believable mental disorders on psychological tests, the problem of malingering of mental disorders may grow worse. The appropriate response to suspected malingering of psychological symptoms by a litigant is a comprehensive forensic examination by a psychologist that contains the following elements: (1) a robust review of a litigant's psychological history; (2) a complete review of a litigant's functioning in such areas as interpersonal relationships, daily activities and ability to cope with stress, to concentrate and to make appropriate judgments; (3) a comprehensive mental status exam in which the psychologist maintains a degree of skepticism while attempting to document or rule out all alleged mental disorders according to the criteria available in the Diagnostic and Statistical Manual of Mental Disorders and (4) the use of psychological tests such as the Minnesota Multiphasic Personality Inventory (MMPI-2), Trauma Symptom Inventory (TSI) and Miller Forensic Assessment of Symptoms Test (M-FAST) which have built-in "Validity" scales which have been scientifically shown in published studies to be useful in identifying malingered psychological symptoms.

Three Types of Inadequate Documentation of PTSD

The diagnosis of PTSD occurs regularly in records I review in my forensic psychology practice. Typically, these are the records of psychological evaluation and treatment services that were provided to an individual (the litigant) in a personal injury, disability or worker's comp case in which a treating doctor or therapist has assigned a diagnosis of Posttraumatic Stress Disorder (PTSD) to a patient.

PTSD is defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, 4th Ed.). The DSM-IV criteria for PTSD require that the individual has experienced a severe traumatic stressor. There are examples in DSM-IV of the kinds of stressors that could reasonably meet the criterion for this disorder. It must also be established that the victim of the trauma experienced a specific emotional state as a result of the trauma. The individual must re-experience the traumatic event, defensively avoid exposure to reminders of the traumatic event and experience symptoms of increased arousal. The DSM-IV is specific on the the kinds and combinations of symptoms that must be present in order to substantiate a diagnosis of PTSD.

In addition, the DSM-IV indicates that malingering must be ruled out in those situations in which an external incentive (such as financial benefits) might play a role.

In many treatment records I review, but not all, the treating doctor does not adequately document all of the required criteria before assigning the diagnosis of PTSD. I say this, realizing that there may always be other records I haven't seen that may contain better documentation, and I always reserve the right to change my opinion should new information from a source be discovered. It not known to me why there is not more comprehensive documentation of PTSD in mental health treatment records. One reason may be that there is limited time to provide treatment and there are waiting lists. Preparation of comprehensive diagnostic notes is seen as a poor use of treatment time. Also, in a treatment setting, additional information about the patient and the diagnosis can be accrued as treatment progresses so there is no necessity for documenting all the criteria of a diagnosis at once. Many or most clinicians feel there is no need to assess for malingering and, further, that assessing for malingering could impair the crucial trust inherent in the doctor-patient alliance that is so important in psychotherapy treatment. In most cases there is no need to assess for malingering within the context of psychotherapy treatment and this is not a significant issue in the treatment record while the treatment record remains in the treatment setting.

However, incomplete documentation of PTSD and failure to rule out malingering can and does become a significant issue in legal cases when the doctor's treatment record is brought into the legal process. Recently, while reviewing mental health records in a disability case, I identified the following three types of inadequate documentation of PTSD.

Minimalist Type: This progress note is often one page in length or less and describes treatment with psychotherapy or psychopharmacology. The diagnosis of PTSD is often prominently noted at the top of the page. In the body of the report there is a discussion of an issue the patient is having, such as marital conflict or depression. There is no or almost no documentation of PTSD in the note. Treatment notes that list a diagnosis should, in my view, substantiate the diagnosis in the notes within a reasonable time after treatment begins.

Compliant Type: In this type of treatment progress note, the diagnosis of PTSD appears to be substantiated, but a closer look reveals that the documentation consists of a listing in the treatment notes of the criteria for DSM-IV as they appear in the DSM-IV. This, in my opinion, does not support a diagnosis of PTSD. Simply reiterating the criteria for PTSD, without elaboration with details from an examinee's history, current mental status data and psychological test results, does not suffice, in my opinion, to confirm a diagnosis. Compliant documentation seems designed to meet the letter of the law but lacks any indication of the treating doctor's knowledge of the patient's symptoms.

Teetering Type: In this kind of treatment note, the clinician discusses only one or two symptoms of PTSD but does not document all the required criteria for the disorder. For example, I might find a comprehensive discussion of the victim's accident and resulting emotional reaction that completely confirms that the individual meets the first set of criteria for the disorder. However, there is no subsequent attempt by the clinician to confirm the remaining required elements needed to confirm the diagnosis of PTSD. This diagnosis is "teetering" because it is like a four-legged table that only has two extended.

Conclusions: Treatment records are created for the purposes of documenting and improving treatment. When these records are moved into the legal arena in a personal injury, worker's compensation or disability case, they do not perform as well and can fail as proof of PTSD. In these kinds of cases, it can be helpful to consult with a psychologist who can conduct a forensic evaluation of the litigant which includes an assessment of malingering.

Stuart Clayman, Ph.D. practices forensic and clinical psychology in Boston, Massachusetts, USA. Tel: 617 782-8355. For more information, click on the "Articles" button on my website.