To suggest that a plaintiff is exaggerating his or her ailments in a personal injury case — or even feigning them entirely — is perhaps one of the riskiest arguments a defendant can raise. But PI attorneys who practice on either side have to deal with the specter of malingering, whether they’re putting forth evidence of malingering or countering it.
Malingering, according to the Diagnostic and Statistical Manual of Mental Disorders, is the intentional production of false or grossly exaggerated physical or psychological problems. The DSM-V notes that people who malinger usually do so for external incentives, such as avoiding work or military duty or for financial gain.
For reasons one might imagine, neuropsychologists find malingering to be more prevalent when litigation is involved.
A 2002 survey in the Journal of Clinical and Experimental Neuropsychology reported that 29 percent of personal injury claims showed signs pointing toward malingering, compared to 8 percent of medical cases not tied to litigation. For mild head injury claims, 39 percent “resulted in diagnostic impressions of probable malingering.” Neuropsychologists who identified cases with probable malingering came by their diagnoses using on evidence that the patient’s cognitive impairment was inconsistent with their condition, their performance on diagnostic tests, and discrepancies among medical records, in addition to other sources.