I hope you read past the title, because that was meant as a double entendre. The “Dangerous Deceit” is not that of the brain damaged person, but the deceit of the neuropsychologist who claims to be able to tell if someone is committing a fraud. At its core, to claim someone is a malingerer is to claim that they are lying. In most states, an expert is not able to testify that someone is lying. That is felt to be the province of the jury. Far too many plaintiff lawyers accept such claim at face value and do not challenge this claim with a pre-trial motion.
The more clever defense doctor will not go so far as to outright claim that a plaintiff has malingered, but suggest it, and then to base such suggestion on what the doctor deems to be inconsistent effort throughout the battery of tests. I discussed in my previous blog the problem that fatigue creates in interpreting neuropsychological results, especially claims that someone did not give best effort. If you progressively tire, you invariably will do worse on tests given later in a battery than earlier.
But a progressive decline in test performance is not the only pattern that can be expected in a brain injured person. In my way of looking at it, a significantly brain injured person can be expected to be inconsistent, because virtually every symptom of brain injury can affect how a person feels, thinks and reacts at any given moment. And that symptom can ebb and flow, both within a given test, across a test battery or from one day of testing to another.
Another common problem with malingering tests is that they are based upon the theory that such test is so easy that even a severely brain injured person would pass it. Well that has some superficial merit, but when they are talking about severely brain injured individuals, they are talking about someone who in most cases, had a focal injury that resulted in an increase in intracranial pressure, resulting in a coma. Such people often have a different set of problems, more severe in the focal area of their injury, but with not as severe of problems in other areas. One cannot assume, despite the logic of it, that a person with a severe brain injury will have a worse outcome than someone with a significant concussion. I have written for years about the Miracles and Tragedies of Brain Injury.
The third problem with malingering claims, is that they only look at the few tests in the battery that are considered malingering or effort tests, and ignore the dozens of other tests in the battery that require considerably more effort than the “effort” test. If properly designed, an effort test should look just like all of the others. So if a person was truly malingering, wouldn’t they do poorly on all the tests, not just the “effort” tests. Yet in every single case I have every heard a defense neuropsychologist raise the malingering specter, there were subtests by my client, and usually many, many subtests, where my client did extremely well. If they were malingering, why did they do well on these tests?
Bottom line, all malingering tests are fatally flawed because there is no actual research on people who actually malingered. The research that is done is done on experimental subjects who are told to pretend to be malingered. In my favorite malingering study, the instruction to exaggerate your claims, but in a way not to get caught, was given to an equal number of brain injured persons and non-brain injured persons. In this study, it was only the brain injured persons got caught. In all other studies, the pretend malingerers were instructed to “act” like a malingerer. But a true malingerer would not want to get caught. The realities are that the only time a malingering test is ever likely to catch someone for true exaggeration, it is likely to catch a brain injured person, because they lack the judgment to do it in a way they won’t get caught.
Brain Damage Not Malingering
Yesterday’s blog about my frustrations with the refusal of the Wikipedia editor to add my two cents on the interaction between organic injury and emotional problems is symptomatic of a problem that is persuasive throughout neuropsychology: the insurance companies and their alter ego, the defense bar, are polluting the science of brain injury. The toxic words in this equation are malingering, conversion disorder and somatoform disorder. Huge sums of money are being funneled into what is being passed off as neuropsychological research from the insurance industry. The goal: to create peer reviewed literature that says that those with mild brain injury symptomotology are either faking their symptoms or are having an emotional reaction to what they experienced.
This topic is one worthy of several blogs. But essentially, more effort is being put into effort testing research, than almost all of the research that is going into the rest of the field brain injury. And the insurance industry has made it so profitable for neuropsychologists to work on the defense side of forensic cases, that neuropsychologists who went into the field with some sense of a calling, have convinced themselves that the doctrines of malingering, conversion disorder and malingering are real.
What does that have to do with a PTSD issue discussed in Wikipedia? It is a mild version of the same equation. The defense bar has what is correctly identified as a dog bite defense to brain injury cases. A dog bite defense is a multi-layered basis of denial, that each time something is proven, then retreat to the next defense.
You weren’t bitten by a dog; if you were, it wasn’t my dog; it you were bitten by my dog, it was your fault the dog bit you; if it was my dog’s fault you weren’t hurt.
Well in brain injury cases the dog bite defense is this:
There are no deficits, the plaintiff is normal; if there are deficits, then the plaintiff is malingering those deficits; if the plaintiff isn’t malingering, then the deficits are being caused by emotional problems, that the plaintiff had before the injury; if the plaintiff’s deficits didn’t exist before the injury, they are still just an exaggerated case of a somatoform or conversion disorder that a normal person wouldn’t have. If none of those other things don’t work, then call it PTSD (post traumatic stress disorder.)
If you work for the defense, NEVER, NEVER, NEVER, admit that the plaintiff had any permanent organic (meaning actual physical) damage or injury to the brain.
The ways in which these “research” studies are structured, they evaluate the plaintiff’s effort. They claim that their research validates that they can tell whether someone is malingering. That is just so much lying with statistics. No study can possibly tell that. It is impossible to tell what is in the mind of an individual. Neuropsychologists are not mind readers. In a court of law, they are most often not even allowed to comment on the credibility of a plaintiff. When you strip the cover off this claim, what they are really saying is that their super secret methodology (that no plaintiff could ever guess at) is telling them that a plaintiff didn’t give consistent “best effort” throughout the test.
I will blog on this particular topic more in the coming days, but such logic is incredibly flawed for a myriad of reasons. But one simple issue invalidates all effort testing claims: no person with brain damage could be expected to give consistent “best effort” over any battery of tests that last for hours and hours. Every single symptom of brain injury, makes it virtually impossible to maintain consistent effort for hours upon hours. I will later itemize how many of those symptoms effect consistent effort, but one common denominator has such a profound impact on effort that it alone makes effort testing a fraud: FATIGUE. Virtually everyone with brain damage, has fatigue. Fatigue makes you work slower, and progressively slower, the longer you are tested. Fatigue makes you make more mistakes. If you are working progressively slower and with progressively more mistakes, you will not be able to give consistent “best effort.”
Our next blog will examine these effort testing issues in more depth.
This topic is one worthy of several blogs. But essentially, more effort is being put into effort testing research, than almost all of the research that is going into the rest of the field brain injury. And the insurance industry has made it so profitable for neuropsychologists to work on the defense side of forensic cases, that neuropsychologists who went into the field with some sense of a calling, have convinced themselves that the doctrines of malingering, conversion disorder and malingering are real.
What does that have to do with a PTSD issue discussed in Wikipedia? It is a mild version of the same equation. The defense bar has what is correctly identified as a dog bite defense to brain injury cases. A dog bite defense is a multi-layered basis of denial, that each time something is proven, then retreat to the next defense.
You weren’t bitten by a dog; if you were, it wasn’t my dog; it you were bitten by my dog, it was your fault the dog bit you; if it was my dog’s fault you weren’t hurt.
Well in brain injury cases the dog bite defense is this:
There are no deficits, the plaintiff is normal; if there are deficits, then the plaintiff is malingering those deficits; if the plaintiff isn’t malingering, then the deficits are being caused by emotional problems, that the plaintiff had before the injury; if the plaintiff’s deficits didn’t exist before the injury, they are still just an exaggerated case of a somatoform or conversion disorder that a normal person wouldn’t have. If none of those other things don’t work, then call it PTSD (post traumatic stress disorder.)
If you work for the defense, NEVER, NEVER, NEVER, admit that the plaintiff had any permanent organic (meaning actual physical) damage or injury to the brain.
The ways in which these “research” studies are structured, they evaluate the plaintiff’s effort. They claim that their research validates that they can tell whether someone is malingering. That is just so much lying with statistics. No study can possibly tell that. It is impossible to tell what is in the mind of an individual. Neuropsychologists are not mind readers. In a court of law, they are most often not even allowed to comment on the credibility of a plaintiff. When you strip the cover off this claim, what they are really saying is that their super secret methodology (that no plaintiff could ever guess at) is telling them that a plaintiff didn’t give consistent “best effort” throughout the test.
I will blog on this particular topic more in the coming days, but such logic is incredibly flawed for a myriad of reasons. But one simple issue invalidates all effort testing claims: no person with brain damage could be expected to give consistent “best effort” over any battery of tests that last for hours and hours. Every single symptom of brain injury, makes it virtually impossible to maintain consistent effort for hours upon hours. I will later itemize how many of those symptoms effect consistent effort, but one common denominator has such a profound impact on effort that it alone makes effort testing a fraud: FATIGUE. Virtually everyone with brain damage, has fatigue. Fatigue makes you work slower, and progressively slower, the longer you are tested. Fatigue makes you make more mistakes. If you are working progressively slower and with progressively more mistakes, you will not be able to give consistent “best effort.”
Our next blog will examine these effort testing issues in more depth.
