With increased psychological and neuropsychological claims come an increased number of malingered or fraudulent claims. Knowing the probability, or base rates, of fraudulent claims is the first step to detecting them. The following are base rates of probable malingering or symptom exaggeration in litigating or compensation-seeking cases by diagnosis as reported in an article written in 2002 by Mittenberg, Pattan, Canyock and Condit titled “Base Rates of Malingering and Symptom Exaggeration”:

• Mild head injury: 41.24%
• Fibromyalgia or chronic fatigue: 38.61%
• Pain or somatoform disorders:33.51%
• Neurotoxic disorders: 29.49%
• Electrical injury: 25.63%
• Depressive disorders: 16.08%
• Anxiety disorders: 13.57%
• Seizure disorders: 9.35%
• Moderate/severe brain injury: 8.82%

If you look at the base rates of malingering or symptom exaggeration by referral type, Mittenberg and his colleagues report 30.43 for personal injury cases and 32.73 for disability or workers' compensation claims. The simple fact to remember is that about 30 percent of claims for compensation for psychological or neuropsychological injury will involve fraudulent exaggeration or malingering.

The defense and insurance communities have become somewhat cynical about the exaggeration of symptoms for financial compensation. Consequently such terms as “compensation neurosis” and “accident neurosis” are terms frequently used to describe many personal injury claims of a psychological nature. Kennedy, in a 1946 article titled “The Mind of the Injured Worker: Its Effect on Disability Periods,” described compensation neurosis as a “state of mind, born out of fear, kept alive by avarice, stimulated by lawyers, and cured by a verdict.” This sounds suspiciously like malingering.

Of major concern to all individuals associated with the payment of compensation for a psychological or neuropsychological injury are the veracity of that injury and the affected individual's self-report of that injury. The concern over symptom veracity is heightened in mental and emotional injury claims, where much of the evidence of injury is based upon an individual's subjective verbal self-report with no objective proof of the injury or the related symptoms. While a third of such claims are likely malingering, the reader is reminded that two-thirds are not.

In the evaluation of any mental and emotional injury claim involving compensation, the possibility of malingering or symptom exaggeration must be considered. The Diagnostic and Statistical Manual of Mental Disorders Fourth Edition Text Revision, which is often viewed as the authoritative text for diagnosing mental disorders, recommends that “Malingering should be strongly suspected if any combination of the following is noted.

1. Medicolegal context of presentation (e.g., the person is referred by attorney to the clinician for examination).
2. Marked discrepancy between the person's claimed stress or disability and the objective findings.
3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen.
4. The presence of an antisocial personality disorder.

These factors should be evaluated for each psychological or neuropsychological injury claim at a minimum.

This examiner recommends the following guide to evaluating such claims:

1. Medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for examination).

Examine for the presence or absence of the following:

• Attorney referred for evaluation.
• Attorney referred for treatment.
• Case clearly identified as in litigation.
• Case identified as being subject to a worker's compensation claim.
• Case referred for disability evaluation.
• Attorney is being billed for treatment.
• Attorney is being copied on all correspondence.
• Treatment provider documents meeting with attorney.

2. Marked discrepancy between the person's claimed stress or disability and the objective findings.

Examine for the presence or absence of the following:

• Normal MRI
• Normal CT scan
• Normal EEG
• Normal X-rays
• Physician releases from treatment.
• Low impairment rating given by physician.
• Person released to return to work and does not return.
• No abnormal psychological test(s).
• No abnormal neuropsychological test(s).
• Recovery curves not consistent with research literature.
• Continues to get worse or doesn't get better at all.

3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen.

Examples of this criterion would include:

• Patient fails to report prior history of mental illness.
• Patient fails to report prior psychiatric treatment.
• Patient fails to report prior psychological treatment.
• Patient fails to report prior medical evaluations.
• Patient fails to report substance abuse.
• Patient fails to comply with prescribed medications.
• Patient fails to comply with recommended treatment.
• Patient distorts prior academic performance.
• Patient distorts prior work performance.
• Any invalid psychological and neuropsychological tests.

4. The presence of an antisocial personality disorder.

• Examples of this criterion may include:
• Diagnosis of any personality disorder.
• Criminal history.
• Multiple marriages.
• Erratic work history.
• History of substance abuse.

There are a number of factors that contribute to a failure to correctly identify malingering. Traditional professional practice has often assumed the sincerity of patients in describing their psychological impairment. Treatment providers operate under the assumption that patients have a “wellness agenda” and that they will be honest in their pursuit of this. Given this assumption, the treatment provider does not often explore the possibility of distortion in the patient's report. In litigation, however, distortion is all too common.

Research indicates that litigation and the possibility of financial compensation have an effect on self-reported symptoms that can contribute to fraudulent claims. When groups of individuals with comparable injuries with the possibility of compensation are compared to those without the possibility of compensation, we see that those with the likelihood of compensation are less likely to profit from treatment and more likely to see themselves as disabled.

There also is research indicating that individuals in litigation may report symptoms that are not related to the litigation. Litigation effects, therefore, must be considered when evaluating a case. A mental injury might be exacerbated by the claimant obsessing over their depositions, trial, or costs of litigation. On the other hand, plaintiffs might be “educated” by their attorneys about various symptoms that might exist, which may lead na?ve and unsophisticated litigants to believe they have a disorder when, in fact, they do not, even when malingering has been ruled out. To evaluate the effects of litigation on a claim, the following red flags should be carefully examined:

• Whether the claimed symptoms arose after the traumatic event.
• Whether symptoms were reported or treatment rendered before or after legal representation was obtained.
• Whether the plaintiff was sent by an attorney for treatment.
• Whether the plaintiff's attorney is the responsible party for payment of treatment.
• Whether the plaintiff's medical records contain mention of litigation-induced stress or anxiety.

The average mental health professional will not spend the time and effort necessary to fully investigate the possibility of malingering. This would include a review of all historical medical records, as well as conferring with other treatment providers that the patient may be seeing. Clinicians often are at a disadvantage regarding making an appropriate diagnosis of malingering due to the claimant's deceitfulness and omission. Malingering is most often discovered through careful review of historical records and detective work rather than clinical evaluation. The average treatment provider only has access to information that the claimant voluntarily provides. Malingering may not be uncovered until the process of legal discovery begins and all relevant records are obtained for review and comparison by an appropriate forensic expert.

Whether you call it symptom exaggeration, malingering, or fraud, the embellishment of claims for compensation does exist. The prudent claim examiner or adjuster will diligently examine all claims for fraud potential, especially those based upon subjective self-report.

Dr. David R. Price is president of The Forensic Network, a forensic consulting practice. He lectures nationally on the evaluation of psychological injury claims and on the evaluation of brain injury claims, as well as the analysis of complex psychological and neuropsychological injury claims.