Challenging False Claims of Malingering by the Defense
I recently read a post by Edwin Lamberth titled "Beating the Malingering Defense" on his firm's blog. Edwin is an excellent attorney practicing in Mobile, Alabama. I have had several occasions to discuss cases with him in the past. His post raises an issue that we must handle in many of our cases. Edwin offers some valuable advice when dealing with such allegations by defendants and their legal counsel in personal injury litigation. I agree with Edwin that it is very important to identify people who live and work around your client. These witnesses can provide valuable and credible testimony concerning the very real impact of a serious injury on your client.
In his post, Edwin also points out that defense counsel will rarely come right out and say your client is exaggerating or faking his injuries. Instead, the defense will try to imply these bad motives to prejudice the treating doctors, judges, and juries against your client. What the defense knows is that an outright accusation of malingering could easily be defeated. The implication of a bad motive casts a shadow of doubt that is much more difficult to defeat.
The medical experts for the defense will often use official sounding tests to claim that they suspect exaggeration by the plaintiff or cannot reach a diagnosis because of questionable results. In order to effectively represent an injured client, an attorney must understand the terminology and "tests" cited by a defense medical expert. Deceptive defense medical experts use a variety of questionable tests to imply malingering. I hope to discuss several of these questionable tests in the future.
Today, I want to talk about just one supposed "test" that defense medical experts mis-use to claim malingering. In the last month, I have deposed two different physicians where this test was cited as an implication of bad motive by my client. This test is called "Waddell's Signs."
When do you typically see a defense expert cite Waddell's Signs? The defense medical expert will most often utilize this "test" in cases where the plaintiff has had a severe injury that results in chronic pain. Why do defense experts cite Waddell's Signs? The expert will cite this "test" to imply that the injured person is exaggerating their pain. The defense expert will often use this implication to say that they cannot accurately state the injured person's limitations or true functional problems because of the positive signs. Again, what makes this accusation so difficult is that the defense expert typically will not outright accuse the injured person of malingering, but rather, will say the positive Waddell's Signs lead to questionable claims. This is the shadow of doubt that the defense will want to present to a jury.
So, what are "Waddell's Signs" and what do they really show? Basically, the "signs" consist of the doctor performing certain physical maneuvers on the patient and asking if they result in pain. They were developed by Gordon Waddell. The idea behind these maneuvers is that the specific maneuvers should not physically produce such pain. The first problem with them is that the physician may not have even performed the maneuvers correctly. Most physicians I have questioned about this test really do not even fully understand the maneuvers they are supposed to perform. However, even if performed correctly, positive results do NOT mean the injured person is malingering. The creator of the signs, Gordon Waddell, clearly stated in his research that they were NOT intended to identify malingerers. In fact, positive results can mean several things, some of which are related to patients experiencing severe chronic pain from an injury. Subsequent research has also suggested that Waddell's Signs have little or no correlation to the issue of malingering. In my own practice, I have seen several past cases where the defense medical expert cited positive Waddell's signs to imply my client was malingering, only to have a surgeon months later find and operate on a very real and painful injury to the person's spine.
Keep in mind that Waddell's Signs are just one of several suspect "tests" used by defense experts to cast doubt on a legitimate claim. As Edwin noted in his blog post, it is very important to identify the people who live and work with the injured person. These witnesses can provide important testimony concerning the very real impact of the person's chronic pain. It is also important to not allow the defense medical expert's unsubstantiated and vague implication of malingering go without challenge. The attorney who regularly represents injured people must understand these medical issues and directly challenge unfounded allegations.
