Case Study:
Should the "Fake Bad Scale" Be Used in Injury Lawsuits?
A test designed to expose fakers is roiling the field of personal-injury law, distressing plaintiffs and strengthening the hand of employers and insurers. Proponents hail the true-or-false test as a valid way to identify people feigning pain, psychological symptoms, or other ills to collect a payout. In hundreds of cases, expert witnesses have testified that the test provided evidence that plaintiffs were lying about their injuries, just as suggested by the test's colorful name: the Fake Bad Scale. Use of the scale surged last year after publishers of one of the world's most venerable personality tests, the Minnesota Multiphasic Personality fnventory, endorsed the Fake Bad Scale and made it an official subset of the M MPI. The Fake Bad Scale has been used by 75% of neuropsychologists, who regularly appear in court as expert witnesses, according to a survey by St. Louis University. But now some psychologists say the test is branding as liars too many people who have genuine symptoms. Some say it discriminates against women, too. In May [2008], an American Psychological Association panel said there appeared to be a lack of good research supporting the test. In two Florida court cases [in 2007], state judges, before allowing the test to be cited, held special hearings on whether it was valid enough to be used as courtroom evidence. Both judges ended up barring it. "Virtually everyone is a malingerer according to this scale," says a leading critic, James Butcher, a retired University of Minnesota psychologist who has published research faulting the Fake Bad Scale. "This is great for insurance companies, but not great for people." The test asks a person to answer true or false to 43 statements, such as "My sleep is fitful and disturbed" and "I have nightmares every few nights." Someone who suffers from, say, posttraumatic stress disorder might legitimately answer "true" to these questions. But doing so would earn the test taker two points toward the total of 23 or so that marks a person as a possible malingerer. Other test statements are "I have very few headaches" and "I have few or no pains." These are false, someone who has chronic headaches would say. Again, those replies would incur two more points toward a possible assessment as a malingerer. About a third of the questions relate to physical symptoms; there are questions about stress, sleep disturbance, and low energy. There is also a batch of questions related to denial of bad behavior. For instance, those who answer false to "I do not always tell the truth" get a point toward malingering .... [The test] recently figured in the case of Steven Thompson, a onetime truck driver in Iraq for the KBR unit of Halliburton Inc. He said he hadn't 368 PART 5 * Leading been able to hold a job since returning to the United States in 2004. Two doctors concluded Mr. Thompson had "chronic" and "fairly severe" posttraumatic stress disorder. He filed a disability claim that was denied by the insurer of Halliburton's since-sold KBR unit. Mr. Thompson appealed to the U.S. Labor Department, which has jurisdiction in such cases. He testified that memories of attacks on his convoys, seeing dead bodies, and smelling burning flesh led to nightmares and sleeping problems that left him too irritable and difficult to work with to hold a job. A psychiatrist hired by the defense, John D. Griffith of Houston, concluded Mr. Thompson was exaggerating his symptoms, and cited his score of 32 on the Fake Bad Scale. A Labor Department administrative law judge denied Mr. Thompson's claim, citing the test results along with inconsistencies in his testimony. Mr. Thompson is appealing .... Solving the Dilemma How would you have ruled if you were the administrative law judge in Mr. Thompson's case?
Q1. I would deny the claim. The test results show that Mr. Thompson is a malingerer who is most likely lying about his condition. He just wants to be paid for doing nothing.
Q2. I would grant the claim based on conclusions reached by the American Psychological Association (APA). The APA questioned the validity of the survey and it thus should not be used to determine whether someone is lying.
Q3. I don't believe that you can determine whether someone is lying based on answers to questions about physical symptoms. Approve the claim.
Q4. Although more research is needed to support the accuracy of the test, I would deny the claim because Mr. Thompson scored 32 and there were inconsistencies in his testimony.
Q5. Invent other options.
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.