Personal Injury Law

Criticism of Defense Malingering Test Gaining National Traction

By Michael Phelan

On March 5, 2008, I criticized the use by professional defense neuropyschologists of a controversial malingering test called the Fake Bad Scale.  See Fake Bad Scale: Weapon of Defense Neuropsychologists, http://www.injuryboard.com/members-area/BlogPost.aspx?blogid=372&postid=232632.  In that blog, I pointed out the fact that the test was designed so that a person with traumatic brain damage and/or serious physical injuries was likely to fail the Fake Bad Scale (FBS) and be deemed a malingerer or faker.

I was interviewed by Sylvia Hsieh of Lawyers Weekly USA who has since published an excellent article on the topic.   Click here to read Sylvia's article on the Fake Bad Scale. http://www.lawyersweeklyusa.com/index.cfm/archive/view/id/430456

Ms. Hsiegh correctly points out that the FBS is biased against women, the disabled (including physical and cognitive disabilities), and those suffering from post-traumatic stress disorder.  Thanks to the good work of trial lawyer Dorothy Clay Sims, a Hillsborough County, Florida court ruled that the FBS was "not an objective measurement of effort, malingering, or over-reporting of symptoms."

Perhaps the most outrageous use of the FBS has been against wounded Iraq war veterans and defense contractors.  Ms. Hsiegh reports that the FBS has been used in suits brought under the Defense Base Act against returning Iraq war contractors who claim post-traumatic stress disorder.  I've also read about the FBS being used against war vets to deny coverage or treatment for claimed brain injury symptoms caused by brain damage suffered during roadside explosions.  Our government should not be using this bogus test to demean our brave soldiers!

Full post as published by Richmond Virginia Personal Injury Lawyer on April 20, 2008 (boomark / email).