Legal News

Test for Fingering Malingerers Comes Under Fire

By Dan Slater

Have you ever been accused of faking badly? Today, a WSJ front-pager looks at a psychology test, used increasingly by defendants in personal injury lawsuits, called the Fake Bad Scale. In hundreds of cases, says the story, expert witnesses have testified that the test provided evidence that plaintiffs were lying about their injuries. The test gained credibility recently after being endorsed by the Minnesota Multiphasic Personality Inventory.

But now psychologists and plaintiffs’ lawyers claim that the Fake Bad Scale identifies too many real victims as fakers, known as malingerers, people who exaggerate their symptons to win judgments in court. “Virtually everyone is a malingerer according to this scale,” says a leading critic, James Butcher, a retired University of Minnesota psychologist who has published research faulting the Fake Bad Scale. “This is great for insurance companies, but not great for people.”

The psychologist who created the test says that while individual items “can be made to seem like evidence for a flawed” measuring process, what’s important is the total score. He claims that criticism is being orchestrated by plaintiffs’ lawyers.

The Fake Bad Test recently figured in the case of Steven Thompson, a onetime truck driver in Iraq for a unit of Halliburton. He said he hadn’t been able to hold a job since returning to the U.S. due to post-traumatic stress disorder. His disability claim was denied by Halliburton’s insurer. Appealing to the U.S. Labor Department, Thompson testified that memories of attacks on his convoys, seeing dead bodies and smelling burning flesh led to nightmares and sleeping problems that left him too irritable and difficult to work with to hold a job.

A psychiatrist for the defense concluded Thompson was exaggerating his symptoms, and cited his score of 32 on the Fake Bad Scale. An admin judge denied Thompson’s claim, citing the test results.

Dr. Griffith won’t discuss the case but says the Fake Bad Scale is helpful in confirming fakers, who he estimates make up 40% of personal-injury plaintiffs. In seven similar prior cases, the same psychiatrist, working for the same insurers, found five of the claimants to be malingering. Asked about the high percentage of Iraq truck drivers he found to be faking, he said: “When you come back to the States, you suddenly discover if you are sick you can make more money than if you were working.”

Full post as published by Law Blog - WSJ.com on March 05, 2008 (boomark / email).