Liability for Diagnosing Malingering

Historical Examples

Suspicious presentations of illness have been known for ages.⁵ We see it in the story of Ulysses,⁶ who tried to avoid recruitment for an attack on Troy by feigning madness, but was called out on it: And so when he learned that spokesmen would come to him, he put on a cap, pretending madness, and yoked a horse and an ox to the plow. Palamedes felt he was pretending when he saw this, and taking his son Telemachus from the cradle, put him in front of the plow with the words: “Give up your pretense and come and join the allies.” Then Ulysses promised that he would come; from that time he was hostile to Palamedes [Ref. 6, Fable 95].

The detection of malingering received much attention in the 19th century. The British literature was keen on detection of feigned illness and other forms of deception.⁵ The focus was usually on members of the armed forces. Some European countries punished malingerers, by disgrace, loss of privileges, corporal punishment, or even life in prison.⁵ During the American Civil War, many types of physical and psychological conditions were feigned.⁷ Keen, et al.,⁸ operating out of Philadelphia's Turner's Lane Hospital, summarized the problem this way: The older soldiers are fast learning deceit, and, if we be not mistaken, the attempts to malinger are now much more frequent, and far more clever, than they were two years ago…. The great majority of malingerers consists rather of men who exaggerate real maladies of trifling character, or who feign disease outright. Of the two classes, the first is the larger. The real depletion of our ranks is not so much by feigned epilepsies, paralyzes, and the like—we speak now of our own experience—as by these cases of disease, once severe, or always slight, to which men add invented symptoms, or continue to assert the existence of those which have passed away [Ref. 8, p 367].

Around the same time, the popularization of rail travel and injuries known as “railway spine” created ambiguity about the origin, pathogenesis, and authenticity of patients' complaints.^9,10 Erichsen's 1867 work on railway spine noted the difficulty in making the diagnosis in mild cases, but he did not appear suspicious of patients' motives.⁹ He was likely in the minority of authorities, most of whom viewed railway spine as an opportunity for a citizen to sue a railroad.¹⁰

As we will illustrate, the label of malingering in a military setting can have devastating consequences for the soldier or veteran seeking compensation or relief from duty. British poet Wilfred Owen, who died in battle at the end of World War I, conveys a sense of the scorn and rejection aimed at military malingerers in this excerpt from “The Dead-Beat”¹¹: We sent him down at last, out of the way.Unwounded;—stout lad, too, before the strafe.Malingering? Stretcher-bearers winked, “Not half!”Next day I heard the Doc.'s well-whiskied laugh:“That scum you sent last night soon died. Hooray.”

Advice to medical practitioners in early 20th century England implied that they enjoyed qualified immunity from liability when identifying malingerers. In the following passage, we see the possibility of the alleged malingerer accusing the examiner of something sinister, with malice erasing privilege¹²: With regard to legal responsibility, the medical examiner need have no fear, for his position is absolutely privileged, so far as libel or slander is concerned; but, of course, privilege could not be pleaded if the examiner had been guilty of malice. Anything said in the witness-box is, of course, covered by the protection extended to witnesses, as well as any report written by him on the case, and any statement given to proper persons for the purpose of his proof of evidence [Ref. 12, p 17, emphasis added].

Prevalence of Malingering

The prevalence of malingering has been difficult to determine, and estimates have been subject to error. This miscalculation is reflected, for example, in the facetious title of an article by Young¹³: “Malingering in Forensic Disability-Related Assessments: Prevalence 15±15 percent.” Estimates suggest overrepresentation in forensic populations. For example, LeBourgeois et al.,¹⁴ reviewing malingering in forensic domains, note as much as 30 percent in disability evaluations and even more among Social Security claimants and criminal defendants.

During a 15-year surveillance of military service members (1998–2012), the incidence of malingering and factitious illness rose from 15.17 per 10,000 person-years in 1998 to 50.24 in 2000, and then down to 9.04 in 2007.¹⁵ These figures did not correlate with the onset of wars in Iraq and Afghanistan. However, a significant proportion of the 4,456 service members diagnosed with malingering were younger recruits, especially under age 20.

Veterans seeking compensation for posttraumatic stress disorder (PTSD) are often suspected of symptom exaggeration or fabrication, but a sample of 26 million military medical visits from 2001–2011 revealed only about 1,000 diagnoses of malingering.¹⁶ Persons with chronic pain complaints and financial incentive referred for psychological evaluation in one 10-year study had a 20–50 percent rate of malingering; workers' compensation claims and the presence of an attorney were among the higher values.¹⁷

One current controversy surrounds mild traumatic brain injury (mTBI, concussion). When unaccompanied by radiological findings, the presentation is often regarded as suspicious. As Wortzel and Granacher¹⁸ recently have observed: “Litigants, attorneys, and medical experts can take advantage of the legitimate but widely disparate potential outcomes of TBI to misrepresent the implications of any given injury event, conflating the very favorable prognosis associated with concussive injuries with the potentially debilitating sequelae of TBI more generally” (Ref. 18, p 499). Expert witnesses who confront these issues scientifically, without malice, are expected to be shielded from claims of defamation.

Look Before You Label

Forensic evaluators are aware that subjects are not always truthful. Indeed, they believe that subjective clinical data must be viewed in the light of its overall contextual congruence, as a proxy for historical truth. They rarely accept everything an evaluee says at face value, but there is a differential diagnosis for untrue self-reporting that includes malingering, pathological lying (pseudologia fantastica), factitious disorder, confabulation, Ganser's syndrome, personality disorder (borderline, antisocial, histrionic, and narcissistic), and delusions.¹⁹ Hall and Hall,²⁰ reflecting on the now-historical term “compensation neurosis,” identified over two dozen synonyms for it, suggesting that it is not entirely coextensive with malingering. An evaluee may be sincere and convey veracity and may be inaccurate, but still not consciously design to deceive. For this reason, a label of malingering must be held in abeyance pending ample evidence.

Persons seeking disability benefits and criminal defendants wishing to avoid prosecution are at high risk for malingering. The American Academy of Psychiatry and the Law's Practice Guideline for the Forensic Evaluation of Psychiatric Disability²¹ suggests psychiatrists always consider the possibility of feigned or exaggerated self-reporting. Because of the seriousness of the diagnosis, “the determination should therefore be based on convincing objective evidence” (Ref. 21, p S19). In the same vein, Knoll and Resnick²² observed: An inaccurate diagnosis of malingering by an expert does a major disservice to justice and embarrasses the psychiatrist. The psychiatrist also is at risk of a lawsuit for defamation of character, in addition to malpractice. In ordinary circumstances, our opinions are given simply with reasonable medical certainty. Because of the serious legal implications of malingering, such a diagnosis should not be made unless there is a high degree of certainty [Ref. 22, p 624]. In the criminal case described by Knoll and Resnick, the defendant obstructed the legal process with behaviors mimicking incompetence and received an enhanced sentence because of it.²² They suggest going so far as to warn a suspected malingerer of a potential negative outcome. The AAPL Forensic Assessment Guideline²³ suggests that, when the warning is given, the psychiatrist document it in the informed consent section of the written report. Beyond this, the evaluator must adhere to objective truth telling and supportable evidence, rather than speculation or intuition.

Scott²⁴ has suggested using structured malingering assessments because of the complexity and gravity of such determinations. Added to the mix is the caution by Rogers and colleagues that malingering, viewed as an adaptation, is not simply “a stable trait or enduring characteristic of feigning individuals” (Ref. 25, p 109); the adage “once a malingerer, always a malingerer” is not true. Not only is the diagnosis of malingering a moving target, but false positives can emerge when forensic evaluators are under pressure to apply the label.²⁶

What if malingering can be proved? Truth is a defense to a claim of defamation, as we recall the failed tack of Oscar Wilde. In a related scenario, malingerers, who may waste medical resources, can be charged with theft of service.²⁷ Health providers that are “covered entities” under the Health Insurance Portability and Accountability Act (HIPAA) are entitled to report crimes under 45 CFR 164.512(f)(5): “A covered entity may disclose to a law enforcement official protected health information that the covered entity believes in good faith constitutes evidence of criminal conduct that occurred on the premises of the covered entity.”²⁸ Appel²⁷ recently suggested that enhanced awareness of the law and anti-malingering statutes may be deterrents and could reduce malingering's drain on resources.

The Madigan Army Medical Center Controversy

Several years ago, clinical screening procedures used at Madigan Army Medical Center (MAMC) in Tacoma, Washington, were called into question when hundreds of veterans seeking medical retirement were not diagnosed with PTSD. MAMC is one of the largest military hospitals on the West Coast. Opened in 1944, it was named after Colonel Patrick S. Madigan, known as “The Father of Army Neuropsychiatry,” the assistant to the Army's Surgeon General from 1940 until 1943.³⁹ The questioned diagnoses involved reversal of PTSD diagnoses in 290 of 690 patients, affecting medical retirement benefits. The situation was publicized and came to the attention of U.S. Senator Patty Murray, who called for an investigation.⁴⁰ There had been speculation that MAMC's top psychiatrist had suggested that each case of PTSD cost $1.5 million and that alternate labels would result in designations of other designated physical and mental conditions discharges, wherein the veterans would not have been paid medical benefits.⁴¹ Because the soldiers had reported PTSD symptoms, the focus became clinicians' disregard of the diagnosis or conclusions that some of the complaints were feigned.

The investigation was prompted in late 2011 when 14 soldiers filed separate complaints about the reversal of their PTSD diagnoses and, in some cases, being labeled as malingerers. Many of these soldiers claimed their symptoms were unfairly discounted, and they were denied legitimate medical and financial benefits. The Army responded in February 2012 by investigating “diagnostic variance” at MAMC. The screening team conducting the original evaluations was organized by a forensic psychiatrist, who had used objective testing, such as the Minnesota Multiphasic Personality Inventory (MMPI) and Structured Interview of Reported Symptoms (SIRS)-2, as well as patient interviews.⁴⁰ These tests are designed to detect patterns of exaggerated answers that do not match actual psychiatric pathology. Because of false positives on these instruments, the reviewers determined, malingering was overdiagnosed. It seemed as if the clinicians relied more on symptom inventories than their own judgment.

Ultimately, the Army released new military guidelines for diagnosing PTSD in April 2012.⁴² These guidelines reject the methods used at MAMC, in particular the written tests designed to detect feigning. But feigning or poor effort, by themselves, are not malingering. The new policy states: Although the influence of secondary gain is an important clinical consideration in the differential diagnosis, the diagnosis of malingering should not be made unless there is substantial and definitive evidence from collateral or objective sources that there are false or grossly exaggerated symptoms that are consciously produced for external incentives. Poor effort testing on psychological/neuropsychological tests does not equate to malingering, which requires proof of intent [Ref. 42, p 7].

All patients whose diagnoses had been reversed were offered re-evaluations; some had their PTSD diagnoses restored.⁴³ Others, whose diagnosis remained adjustment disorder, were relegated to reduced or no benefits.⁴⁴ Because adjustment disorder, by DSM criteria, does not persist beyond six months, veterans may be frozen out of service-related claims requiring PTSD.^45,46

Service-related trauma can lead to behavioral disturbances that can distract clinicians from PTSD, resulting in a label of antisocial personality and an other-than-honorable discharge. In March 2014, five Vietnam combat veterans brought a lawsuit against the Navy, Army, and Air Force, aided by volunteers from Yale Law School.⁴⁷ The plaintiffs received expedited action on their claims, ultimately gaining upgrades from their other-than-honorable discharge status and opening the door to other individual claims.⁴⁸ The complaint, in addition to detailing the plaintiffs' narratives, outlines an important dynamic: how trauma-related behavioral disturbances can lead to other-than-honorable service discharges (Ref. 47, Complaint & Disposition). Having been filed in the DSM-5⁴⁹ era, the document urges: “Today, in recognition that PTSD can cause behavior that might otherwise appear as deliberate misconduct, the military's own regulations require that members of the armed forces ‘reasonably asserting posttraumatic stress disorder’ receive a medical examination prior to administrative separation” (Ref. 47, Complaint, p 24).

Brannan v. Humphrey

The Georgia Department of Corrections executed Andrew Brannan on January 13, 2015.⁵⁰ An Army First Lieutenant serving in combat in Vietnam in 1970 and 1971, he had been convicted in the homicide of a deputy sheriff in 1998.⁵¹ His behavior at the time, captured on video, was manifestly disturbed (driving 98 mph, dancing in the street, irritable, and yelling, “Shoot me”). However, Mr. Brannan pulled a rifle from his vehicle and shot the victim nine times. He needed a medical basis for his behavior to reduce culpability.

At the guilt phase of the trial, there was testimony that the defendant, due to combat trauma in Vietnam, had PTSD, which was active at the time of the incident. According to the petition alleging ineffective assistance of counsel, the prosecutor referred to Mr. Brannan as a malingerer, having exaggerated his combat experience.⁵¹ The trial attorney used the testimony of three psychologists, not all familiar with all the facts of Mr. Brannan's combat experiences but attesting to the genuineness of the PTSD in relation to the incident.⁵² Mr. Brannan was convicted. Then, in the penalty phase, only character witnesses were used. Apparently, the jurors did not give weight to the argument that PTSD and other mental disorders influenced the defendant's behavior and recommended the death penalty. Perhaps they were influenced by the government's trivialization of PTSD: “The prosecutor in his case made light of PTSD, commenting that ‘everybody's got a little bit of PTSD. We've all been through some kind of trauma or another.’”⁵³ This type of argument, tending to dilute PTSD's clinical reality, has, in our view, a pernicious effect on jurors' capability of weighing the testimony.

In the subsequent appeals, including a claim of ineffective assistance of counsel, the Georgia and federal courts would not grant Mr. Brannan a new trial, with the Eleventh Circuit Court of Appeals citing that the expanded arguments in postconviction were better than those at trial.⁵⁴ Ultimately, the Supreme Court declined to hear the case, leaving open the question of expanding the principle in Ford v. Wainwright⁵⁵ of not executing specified persons with mental illness.⁵⁶ The question has not changed since Mr. Brannan's case was reported in the Journal in 2010⁵⁷ and has continued to receive attention in legal commentary.⁵⁸ Perhaps, as Bordenave and Kelly⁵⁹ suggested before the Eleventh Circuit's decision, the reversal of death sentences would be burdensome and signal the end of the death penalty in America. Just as likely, Entzeroth⁵⁸ points out, courts are unlikely to move in this direction until state legislatures do so. Whether the suggestion of defamation in Mr. Brannan's case can be linked to his execution is unknown, but the tactic of implying falsification of self-reported symptoms remains a potent rhetorical weapon.