- Malingering is not technically a diagnosis according to the DSM-IV, but rather a "condition that may be a focus of clinical attention". Some defense experts imply malingering through weak terms like "possible malingering" to imply plaintiffs are faking without definitively saying so. - An opinion of malingering should be based on objective psychological testing like the MMPI-2, which contains validity scales that can reliably detect exaggeration of symptoms for external incentives. It is the gold standard for detecting malingering. - Defense experts who claim a plaintiff is exaggerating should be carefully cross-examined regarding the objective basis and evidence from psychological testing for such an opinion.

1. Challenging the "Diagnosis" of Malingering
March 17, 2005
Stuart J. Clayman, Ph.D.
Licensed Psychologist
181-4 Lake Shore Road
Brighton, MA 02135
Tel: 617 782-8355
Fax: 617 254-9053
E-mail: jay@braindoctor.org
In personal injury cases which involve emotional distress damages, mental health
defense experts may label the plaintiff with a diagnosis of "malingering", indicating by
such a "diagnosis" that the victim is exaggerating or faking psychological injuries.
There is some debate about whether or not "malingering" is a diagnosis. According to
the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV)
"malingering" is not, strictly speaking, a diagnosis but, rather, is a "condition that may
be a focus of clinical attention". The special status afforded to malingering and other
conditions that are not diagnoses is emphasized by the letter "V" which is placed in
front of the code number. Thus, in the DSM-IV, malingering is coded as V65.2.
Defense experts sometimes telegraph their uncertainty about a "diagnosis" of
malingering by using such terms as "possible malingering", "probable malingering" or
"Rule out malingering". These formulations, though clinically weak, can sometimes
have the desired effect of allowing the defense expert to have his cake and eat it too
by implying to the court that the plaintiff is faking while not actually saying so. Some
years ago, while I was testifying at a trial, another psychologist who was not available
to testify had written a report in which he indicated that the plaintiff was faking by
using the "Rule out malingering" language. The judge, who apparently was well
versed in such obfuscation, asked me to comment on this diagnostic formulation. My
response was that using a term such as "rule out malingering" is like yelling "there is
no fire in this movie theatre". One is much more likely to focus on the word “fire” than
on the rest of the statement. Similarly, the reader of a report may be much more likely
to focus on the term "malingering" than on the "rule out" aspect of the terminology
and derive an impression that is incorrect and opposite to what is stated or written.
“Malingering” is the term psychologists and other mental health professionals use to
describe “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”. The individual engaging in malingering is thought to be
consciously aware that he or she does not have the physical or mental illness that is
being presented.
Because judges and juries may afford an unusual degree of credibility to

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psychologists and other doctors, a mental health defense expert who believes that
the plaintiff is faking should state so clearly and unambiguously and offer the best
available substantiation for such an opinion.
In my view, an opinion that a plaintiff has engaged in malingering must be based, at
least in part, upon objective psychological testing. The objective psychological test or
tests utilized must contain "validity scales" which are special functions that are built
into the psychological test that allow the expert to scientifically assess the attitudes
with which the plaintiff has approached the test.
One psychological test that contains these special "validity" scales is the Minnesota
Multiphasic Personality Inventory. The MMPI-2, as it is now known, has been
described as the "Cadillac" or "gold standard" of objective psychological tests and is
also a standard against which other tests of malingering are measured. The MMPI-2
contains 567 true-false questions and is able to yield scores on approximately 100
scales that are used to determine, for example whether the test-taker is anxious,
depressed or likely to present symptoms of Posttraumatic Stress Disorder or many
other neurotic or psychotic conditions. More importantly, for this discussion, the
MMPI-2 is able to provide objective and scientifically based information about
whether an individual has responded honestly to the test, or whether he or she has
attempted to exaggerate or minimize psychological problems, perhaps in order to
obtain an external incentive, such as money damages in a personal injury lawsuit.
In personal injury litigation, disability and worker's compensation claims, the test-
taker may have an incentive to appear more seriously psychologically disturbed than
is the case. Research studies have consistently shown that the MMPI-2's F
(Infrequency) Scale, which consists of 60 special test items, can reliably identify the
tendency of some test-takers to exaggerate psychological problems. Berry, Baer and
Harris (1991) analyzed the data from 28 studies of malingering on the MMPI and
found that most of the studies supported the MMPI's ability to detect faking. Schretlen
(1988) reviewed the research findings for the use of psychological tests in detecting
malingering and reported that the MMPI was valuable for this purpose. He concluded
that "it is probably indefensible to render expert testimony regarding the likelihood of
malingering without psychological test data bearing on this question".
When mental health defense experts offer testimony that a plaintiff is exaggerating or
faking mental problems, that expert should be carefully cross-examined regarding the
basis for such claims.