Collateral Witnesses

One convincing way to argue against a malingering defense is to have witnesses testify that knew the plaintiff both before and after the injury occurred. Co-workers, friends, religious leaders, and many others can provide credible testimony as to the changes the individual exhibited in response to the injury. These witnesses can also provide evidence as to the credibility of the plaintiff to show that they would not lie about their medical condition.

Instances where the plaintiff endured other illness or injury are especially relevant. Testimony that the plaintiff “fought through” discomfort to get a job done, or to meet their family obligations can be impactful in showing that the injury sustained in this case is real and substantial.

Lack of Prior Medical History

If there is a lack of prior medical history in similar circumstances, it is important to present this evidence. If, in years past, the only medical treatment a plaintiff received was for basic health maintenance, having your primary care provider testify to such facts will show that there is no pattern of seeking unnecessary medical treatment, only someone who is focused on their general health and well-being.

Malingering Tests

Although there are no diagnostic tests that can specifically identify a patient who is malingering, there is a battery of tests that are used by medical professionals to identify the common symptoms. These tests, according to the National Library of Medicine include:

Lab Studies

• Complete blood cell (CBC) count
• Serum electrolytes.
• Renal function tests
• Liver function tests (LFTs)
• Blood alcohol level
• Blood and urine toxicology screen (may also rule in malingering in case of drug abusers seeking opioids)
• Computed tomography (CT) scanning or magnetic resonance imaging (MRI) of the brain should be considered to rule out organic brain disorders

Other Tests

• The Minnesota Multiphasic Personality Inventory (MMPI)
• The F-scale
• Test of memory malingering
• The negative impression management scale
• Rey 15-item test
• The temporal memory sequence test
• Symptom and Disposition Interview (SDI)

It may be prudent for a patient to have a conversation with their medical providers about these tests to see if any of them have been used during their treatment. These tests are often designed to be feathered into the course of normal treatment in a way that does not tip off the patient that the tests are designed to identify malingering. This method can be the most credible way to establish through medical testimony the lack of malingering.

Using Malingering Against the Defense

Alleging that a patient is lying about their condition to gain a benefit can be a tricky proposition. In some cases, this defense can be turned back on the defendant when the testimony of lay witnesses and medical professionals proves otherwise. In those cases, it can be pointed out that the defense is attempting to avoid responsibility for causing an injury by calling the victim a liar. This can be pointed out to the jury at trial, which can further enhance the damage that has been done to the plaintiff and further entice a Vermont jury to increase a damages award.

The content above is for informational purposes only and should not be considered legal advice. Readers with specific legal questions should consult with their own private counsel.