Detection of Malingering during Head Injury Litigation

386 Pages·2012·3.35 MB·English

by  David Faust

Detection of Malingering during
Head Injury Litigation

Cecil R. Reynolds
Arthur MacNeill Horton, Jr.
Editors
Detection of
Malingering during
Head Injury Litigation
Second Edition
Editors
Cecil R. Reynolds Arthur MacNeill Horton, Jr.
Department of Educational Psych Associates of Maryland
Psychology, Texas A&M University Bethesda, MD 20814, USA
College Station, TX 77843, USA [email protected]
[email protected]
ISBN 978-1-4614-0441-5 e-ISBN 978-1-4614-0442-2
DOI 10.1007/978-1-4614-0442-2
Springer New York Dordrecht Heidelberg London
Library of Congress Control Number: 2011941358
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Preface
The issue of potential malingering (or poor effort) in the context of head
injury litigation has seen an explosion of research and commentary in the last
quarter century. Various journals devoted to clinical neuropsychology prac-
tice of the 1950s, 1960s, and 1970s rarely published papers focused on the
issue of malingering in civil litigation. The few papers that were published
deal with malingering with regard to military service and criminal prosecu-
tion. Largely through the demonstration of important clinical contributions to
patient care of clinical neuropsychology research efforts by Ralph Reitan,
Oscar Parsons, Arthur Benton, and a bevy of their former students (Lawrence
Hartlage and Charles Mathews, among others) did clinical practice in neu-
ropsychology begin. An interesting clinical note is that Dr. Benton initially
developed his famous Visual Retention Test based on his clinical work during
World War II, when he was based at the San Diego Veterans Administration
Hospital and had to assess possible malingering by sailors who did not wish
to return to fi ghting in the Pacifi c.
The growth of clinical neuropsychology research and clinical practice and
concurrent founding of journals to support scholarly inquiry and clinical
practice in the fi eld has produced many revelations about the effects of closed
head injury, an injury for many years believed to be of little consequence and
one known at times as a silent epidemic. Coupled with the explosive growth
of knowledge about the potential deleterious effects of closed head injury has
been increased personal injury litigation, changes in protocols for screening,
assessment, and treatment of sports related and war related head injuries and
product liability suits. As more and more head injuries have come to be liti-
gated and the potential sums of money involved have become enormous,
issues and concerns about malingering (or poor effort) have grown substan-
tially. By the 1980s, malingering and its evaluation and detection had found a
routine place in the primary journals of neuropsychology.
The fi rst edition of this book attempted to address the problem of malin-
gering (or poor effort) in head injury litigation. Several things were clear at
the time of the fi rst edition. The fi rst was that malingering was a very substan-
tial problem in head injury litigation. For example, empirical research fi nd-
ings had indicated that at least 25% of cases of head injury in litigation involve
malingering. Second, the possibility of malingering (or poor effort) existed in
all head injury litigation cases and clinicians needed to be prepared to make
v
vi Preface
the diagnosis when it is the most probable diagnosis. Third, there were many
methodological, conceptual, and logistical caveats related to the detection of
malingering. Fourth, there are emotional diffi culties in labeling a patient a
malingerer (or someone who gave poor effort). It is a diagnosis with clear
negative implications and is tantamount to calling a potentially brain injured
patient a liar, something that can have very negative personal and fi nancial
consequences. Because of the very serious consequences, convincing evi-
dence is required for such a diagnosis and more than is the case for many
clinical diagnoses made on a routine basis. The fi rst edition attempted to
demonstrate the utility and the pitfalls of various actuarial and clinical
approaches to the diagnosis of malingering and equip the clinician with the
necessary tools, knowledge, and logic to consider malingering and its alterna-
tive diagnoses intelligently, honestly, and ethically.
In the 15 years that have passed since the fi rst edition was published, much
has happened in terms of research and clinical practice related to the detec-
tion of malingering (or poor effort) in head injury litigation. For example, a
new common practice is to use the term “poor effort” rather than “malinger-
ing” as poor effort is a behavior that can be observed objectively. On the other
hand, the term malingering, while certainly the initial basis for the area of
research, has been thought to require the forming of a conscious intention
which as yet is unobservable in addition to a behavior. Still, malingering
remains in the clinical nomenclature of the discipline of clinical neuropsy-
chology, as well as in many areas of medicine.
The large volume of clinical research now available has prompted many
strong ideas about, creative approaches to, and new methodologies for the
detection of malingering but has likewise spawned a considerable tautology
and clinical mythology. The diagnosis of malingering is not just a scientifi c
controversy but has become a political one as well. Clinical practitioners may
complain about the favoring of defense or plaintiffs’ allegations of brain
injury usually when they are on the other side of the controversy and some-
times may have a fi nancial interest in the outcome. The diagnosis of malin-
gering (or poor effort) is fraught with conceptual, philosophical, and logistical
potholes. Because much has happened in this clinical area, it was felt that a
new edition was required to address new research fi ndings and changes in
clinical practice that have occurred since publication of the fi rst edition of this
book and to provide practitioners with the necessary scientifi c fi ndings to
guide their clinical work.
In the second edition of this work, the assembled chapters are based on
rigorous scientifi c research but are clinically oriented to facilitate their appli-
cation to practice. Faust and colleagues open with two closely related chap-
ters that disclose the methodological and conceptual problems in the diagnosis
of malingering to establish clearly a mind-set of critical analysis before read-
ing about methods proposed by other authors. The chapters that follow pro-
vide current methods and thinking on multiple approaches to the detection of
malingering during head injury litigation, including specifi c symptoms such
as memory loss to more global claims of diffuse loss of function to cognitive
and psychomotor arenas. The various presentations range from the strong
actuarial methods of Reitan and Wolfson, which have a false-positive rate of
Preface vii
nearly zero (but the sacrifi ce to false-negative rates is uncertain), to the careful,
consummate clinical reasoning of Hartlage, known as a gifted clinician as
well as a leader in professional development within neuropsychology. This
book has been developed for the thoughtful, serious clinician who may be
involved in evaluating patients with head injury who often become involved
in litigation with regard to these injuries. The book contains many “how-to”
sections, but just as many cautions and concerns are expressed about how to
approach the problem of malingering.
The editors must express their appreciation to the chapter authors, who
have laid bare their own methods and reasoning in the evaluation of malinger-
ing (or poor effort). Each has provided original insights, methods, and com-
mentary on these very complex and diffi cult issues. Their willingness to share
in the movement toward advancement in the diagnosis of malingering is
much appreciated. To our editor at Springer, Janice Stern, we would like to
express our appreciation for her continuing faith in our efforts to produce
works that contribute to the growth of clinical neuropsychology and in par-
ticular for her affable nature in both pulling and prodding work that was so
often delayed. To the Springer production editor, we also thank you for your
tenacity in chasing author queries and in bringing the manuscript to its pub-
lished conclusion with such promptness and with such style and for putting
up with us in the process. To our long suffering wives, Dr. Julia A. Hickman
and Mary W. Horton, goes our continuing and unfaltering love and apprecia-
tion for their help, support, and understanding during those times devoted to
manuscripts such as this that pull from time otherwise spent together. Thank
you, thank you very much!
Cecil R. Reynolds
Arthur MacNeill Horton, Jr.

Contents
1 Assessment of Malingering and Falsifi cation:
Conceptual Foundations and Sources of Error ......................... 1
David Faust, David C. Ahern, Ana J. Bridges,
and Leslie J. Yonce
2 Assessment of Malingering and Falsifi cation:
Pushing the Boundaries of Knowledge in Research
and Clinical Practice .................................................................... 47
David Faust, David C. Ahern, Ana J. Bridges,
and Leslie J. Yonce
3 Noncredible Performance in Mild Traumatic
Brain Injury .................................................................................. 121
Russell D. Pella, B.D. Hill, Ashvind N. Singh,
Jill S. Hayes, and Wm. Drew Gouvier
4 Detection of Malingering Using Forced-Choice
Techniques .................................................................................... 151
Juan Manuel Gutiérrez and Ruben C. Gur
5 Factitious Responding and Malingered Memory Disorder ...... 169
J. Michael Williams and Kelly Jones
6 Performance on the WMT, MSVT, and NV-MSVT
in Children with Developmental Disabilities and in Adults
with Mild Traumatic Brain Injury ............................................. 201
Paul Green, Lloyd Flaro, Robbi Brockhaus,
and Jorge Montijo
7 Detecting Malingering on the Luria-Nebraska
Neuropsychological Battery ........................................................ 221
Charles J. Golden and Christine A. Grier
8 Detection of Malingering and Invalid Test Results
Using the Halstead–Reitan Battery ............................................ 241
Ralph M. Reitan and Deborah Wolfson
ix
x Contents
9 Detection of Feigning of Head Injury Symptoms
on the MMPI-2 ............................................................................. 273
David T.R. Berry, Lindsey J. Schipper, and Jessica A. Clark
10 Explaining Symptom Validity Testing to the Trier of Fact ...... 287
Robert J. McCaffrey, Julie K. Lynch, and Laura L.S. Howe
11 Distinguishing Genuine from Malingered Posttraumatic
Stress Disorder in Head Injury Litigation ................................. 301
Laura L.S. Howe
12 Clinical Detection of Malingering ............................................... 333
Lawrence C. Hartlage
13 Clinical Acumen, Common Sense, and Data-Based
Decision Making in the Assessment of Dissimulation
During Head Injury Litigation ................................................... 351
Cecil R. Reynolds and Arthur MacNeill Horton, Jr.
Index ...................................................................................................... 371