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Insurance & Casualty Litigation

Spotting and Successfully Defending Claims Against Malingerers

Patients who malinger, or exaggerate illness, can be a problem for health and claims management professionals. Malingering is defined by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition-Text Revision (DSM-IV-TR) as the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding work or military duty; obtaining drugs or financial compensation; or evading criminal prosecution. Often this external financial gain is litigation related to the subject injuries, whether it be disability, workers’ compensation or tort claims.

Malingering vs. Fraud

Malingering should be distinguished from fraud. Malingering assumes that there is actually a compensable injury, but that the patient “lingers” in his care to receive additional benefits. Fraud is outright deception in order to receive benefits that are not due to a patient. While malingering may be a type of fraud, depending on the patient’s conscious decision to continue care, malingering originates from an initial, compensable injury.

While actual fraud is rare in a worker’s compensation claim, malingering is more prevalent and more difficult to ascertain. A 2002 study in Journal of Clinical and Experimental Neuropsychology found that up to 29% of personal injury and 30% of disability claims involved possible malingering and symptom exaggeration, compared to probable malingering in up to 8% of medical cases not related to litigation. While a majority of patients involved in litigation are not attempting to “game” the system, sometimes it appears that the patient’s claims are inconsistent with his alleged injuries. An adjuster must not immediately jump to the conclusion of fraud but should be cognizant of the fact that inconsistencies may be related to other issues, such as a misdiagnosis or a separate medical issue.

Malingering is a difficult diagnosis to prove – Courts generally view evidence in the light most favorable to the patient. Additionally, physicians base their opinions on their patients’ subjective complaints. Doctors need to trust their patients in order to effectively treat and support their patients.

Another barrier to making a malingering diagnosis is that there are mental conditions that, while they may be compensable, can mirror malingering.

Some signs that the patient may be malingering may include:

  1. Patient is difficult to contact;
  2. Gaps in treatment;
  3. Patient often misses treatment and appointments;
  4. Resistance to an Independent Medical Examination (IME);
  5. Injuries that occur near holidays, forced reduction of staff, or vacations;
  6. Symptoms are initially vague, but later become exaggerated – Patient may also have laundry list of complaints that precisely correlate to web-diagnosis;
  7. Physician or physical therapist notes that indicate exaggeration or do not fit with diagnosis;
  8. Physician reports that are in direct contradiction to each other;
  9. Frequent change in doctors;
  10. Disability extends longer than typically expected;
  11. Premature or excessive demands for treatment or benefits by employee;
  12. Course of treatment exceeds the typical treatment for diagnosis;
  13. In auto claims, the vehicle damage is inconsistent with the physical complaints;
  14. Prior claims in workers compensation or automobile accidents that indicate exaggerations or malingering;
  15. Patient has sporadic or short-term employment history;
  16. Disciplinary issues in employment;
  17. Financial problems of the employee;
  18. No witnesses to the accident;
  19. Friends, family, neighbors indicate that patient is more active than he claims to be; and/or,
  20. Social media shows an active patient.

Although any one of the aforementioned signs by itself may not indicate a malingerer, a combination of signs may point to a malingering diagnosis.

However, if you suspect that a patient is malingering, there are steps that you can take to defend the claim. Documentation is key. Doctors who keep detailed charts about a patient’s presentation and testing results leave a necessary paper trail that will help other specialists who later examine the patient. Physicians should focus on the facts of a medical visit in their patient notes. Malingering is also difficult to maintain over the long-term. A comparison between the initial visit and later visits may also prove beneficial in diagnosing malingering.


Allen & Gooch Attorney Finds Success with Malingering Argument

Scott Davis, with Allen & Gooch, APLC, recently had success in defending a claim by asserting that the claimant was malingering. The Worker’s Compensation Court found that found that an independent neuropsychological examination can be useful in establishing a malingering diagnosis. The Court was especially persuaded when the IME relied upon a battery of tests and was supported by two other physicians who examined the claimant. The Court found that the claimant was not able to meet his burden of proof in proving that the medical expenses were necessary treatment related to his work-related accident. The Worker’s Compensation Court’s decision was appealed by claimant and upheld by the Louisiana Fourth Circuit Court of Appeal. Leidelmeijen v Ferncrest Manor Nursing Home, (4th Cir. 3/16/16) No. 2015-CA-1216.


Despite the difficulty of detecting a malingerer, close case management can help aid in its detection. Additionally, bringing in neutral third parties, such as nurse case managers and/or Independent Medical Examiners, can help provide additional evidence that may be persuasive to the Courts. Bringing in these neutral parties to evaluate the patient as soon as it is suspected that they are malingering, can help you to effectively defend your case and avoid protracted litigation.


Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.