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NEUROPSYCHOLOGY: The Detection of Malingering During Head Injury Litigation

Depending on the source cited, 3 to 10 million head injuries occur each year. However, due to safety advancements

By J.M.G., Ph.D.

Depending on the source cited, 3 to 10 million head injuries occur each year. However, due to safety advancements in many areas, the number may be around 5 million per year (Kraus & MacArthur, 1996; Sosin et al, 1996). Whatever the actual magnitude, the costs are staggering; approximately $50 billion per year, just in treatment.  Therefore, neuropsychologists are being asked to document not only the presence of a head injury but also the impact on employment, academic endeavors, as well as social and family relations.  However, the courts and the public seem to also seek some assurance that the evaluations conducted by all experts in the legal arena are reliable and valid.

Formally trained neuropsychologists are cognizant of the need to assess motivation as part of a standard battery of cognitive tests.  Given the lack of knowledge among the general public regarding the affects of head injury, the clinician can use this fact to help assess the litigant’s motivation.  The best technique (and there are many) is typically thought to be the Forced Choice paradigm.  With solid research to support this approach, it is considered simple, easily administered and effective.  The clearest example is the old fashioned coin toss.  If the coin is fair, over a large set of trials 50% of the tosses will result in heads while 50% will result in tails (there are two alternatives and one answer is required; a “forced choice paradigm”). 

Typically, deviations from a 50% distribution are considered suggestive of effort issues, if they are significantly below chance expectations.  To date, many variations on this technique have been published and are in wide use throughout the country (hence, meeting all legal standards for admissibility into the courts).  What is appealing for the expert is that forced choice tests are available in formats that can address virtually any condition with which a litigant may choose to present (e.g., lights, sounds, scents, pictures, words, numbers). 

It is notable that this technique has been incorporated into actual tests of cognition.  Thus, a litigant attempting to malinger on a forced choice test can find him or herself in a rather perplexing quandary. If the litigant wishes to continue in the deception of impairment, he or she may realize that the structure of the forced choice test places him or her in jeopardy of being exposed as a fraud. 

However, if the litigant suddenly chooses to do well, the improved performance may serve as an indication that the deficit was not as severe as previously claimed.  In any event, both the referring attorney and the court will understand the probability of a litigant’s truthfulness.  Ultimately, it is hoped that fraudulent cases can at least be stopped at a level that will save time and money for all concerned.