personal injury law


What is Malingering?

If you were injured because of someone else’s negligence or actions, you have the right to seek compensation for your losses. However, defendants, insurance companies, and workers’ compensation programs are often reluctant to pay that compensation. One way these parties try to avoid paying compensation is by accusing the victim of lying about or exaggerating their injury. This is called malingering.

When someone is accused of malingering, they are being accused of faking their injury or lying about how severe their injury is. While you might think exaggerating your injuries is harmless, malingering can cause you to lose compensation you would have otherwise received. If you are malingering while receiving disability benefits, you can even be prosecuted for fraud. But you should not let the threat of a malingering accusation deter you from seeking the benefits or compensation you deserve. Understanding what malingering is, how a defendant might prove it, and what to do if you are falsely accused of malingering can help you better protect your legal rights.

The Concept of Malingering

Malingering is both a legal and psychological concept. It occurs when someone fakes or exaggerates their injuries so that they can receive a benefit they would not have gotten, such as time off from work or military duty, workers’ compensation, or financial compensation. Accusations of malingering are often made in workers’ compensation cases, workplace injury lawsuits, and personal injury lawsuits.

Most people try to represent their injuries as accurately as possible. However, there are people who lie about their injuries to avoid work or get more compensation or benefits than they would otherwise get. That is why insurance companies, workers’ compensation programs, and defendants work hard to uncover malingering. Accusing an injured victim of malingering is also a tactic used to reduce or eliminate the benefits or compensation a victim can receive.

What Are the Risks of Malingering?

Whether you are seeking workers’ compensation or are pursuing damages in a personal injury case, lying about your injury puts your potential compensation at risk. It can also get you into legal trouble for committing fraud or court-martialed if you are a member of the state guard or military.

In a personal injury case, each side gets a chance to present evidence and explain why the judge or jury should find in their favor. If you are seeking compensation for a physical injury, both you and the defendant will likely present evidence to establish whether your injury exists, how severe it is, and how the injury has affected your health and quality of life. This gives the defendant a chance to prove you are malingering so that they can pay you less or no compensation.

If the defendant proves your injury is completely fake, you will not get compensation. Even if you do have some legitimate injuries, but the defendant proves you are exaggerating the severity of your injury, the jury can take your lying into account when rendering their verdict and deciding on damages. That means you might get less compensation than you would have received if you had been honest.

If you are seeking workers’ compensation benefits, malingering can lead to your claim being denied. Someone who is entirely faking an injury will not need those benefits. However, if you are actually injured but exaggerating the severity or extent of your injury, you probably need workers’ compensation. If you are injured, malingering can deprive you of the workers’ compensation benefits you need and deserve.

If you are malingering while receiving Social Security Disability benefits, you can be investigated for fraud. The Social Security Administration’s Cooperative Disability Investigations (CDI) program can start an investigation after receiving a tip from law enforcement, a state’s disability determination service, or even a member of the public. If the CDI confirms that fraud has taken place, federal or state prosecutors can bring charges, or the Social Security Administration can impose sanctions.

Members of a state guard who malinger will face penalties. In both Texas and Louisiana, members of the state guard who fake an illness or injury to avoid duty can be court-martialed and punished. Similarly, under federal law, members of the U.S. Armed Forces can also be court-martialed and punished for malingering. These punishments can range from confinement to dishonorable discharge.

How Is Malingering Detected?

Because a doctor’s opinion about the extent and serenity of someone’s injuries partly depends on the patient’s own reports, malingering is difficult to detect. Lie detection tools, such as polygraph machines, are notoriously unreliable. However, there are several methods that help experts detect malingering.

Malingerers who are faking mental cognitive or mental disorders tend to present themselves as being more impaired than someone who genuinely has a condition would be. For example, the malingerer might claim they are unable to complete basic tasks that people actually suffering from a disorder would be able to do. Experts also look out for errors a person genuinely suffering from a disorder would likely not make during a performance test.

Physical injuries can be more difficult to fake. But, because pain and suffering are subjective and cannot be measured by diagnostic devices, doctors have to take a patient at their word when assessing someone’s condition. When it comes to physical injuries, doctors rely on a combination of medical testing and examination. They can use tools, such as MRIs and X-rays, to get a sense of how severe an injury is and what symptoms someone is likely to have. For example, while uncomfortable, a hairline fracture will usually be less painful and debilitating than a compound fracture.

Physical examinations also help doctors figure out if a patient’s reported symptoms align with their actual physical condition. Doctors will also consider whether a patient is following the prescribed treatment plan or is complying with medical evaluations. Like cognitive and mental disorders, doctors also detect malingering by evaluating how a patient’s reported symptoms deviate from expected symptoms.

However, it is important to note that tests for malingering are not perfect. An injured person might perform poorly on these tests or be unable to fully cooperate because of their injury or psychological state. Side effects from medicines can also make it difficult for people to focus or exert full effort, which a doctor can misinterpret as a sign of malingering.

How Do You Prove Malingering?

There are a few common arguments defendants make when trying to prove someone is malingering:

  • The plaintiff legally or economically benefits from the presentation of their pain and suffering, injuries, illnesses, or conditions in this inaccurate way.
  • The plaintiff wants to influence a jury by presenting the negative effects of the accident in an inaccurate way.
  • Non-professional observers can distinguish between the reality of the plaintiff’s condition and their alleged condition.
  • The plaintiff refused or otherwise failed to seek care for their alleged condition outside a legal setting.

Just as you have to present evidence to prove your injury, the party accusing you of malingering will need to provide evidence to prove you are lying about your injury. Usually, the other party will discuss the facts and circumstances of your injury, review your medical records, and ask your doctor questions about your injury. They might also hire their own medical expert to offer an opinion about the legitimacy and severity of your injury. If you are filing a workers’ compensation claim, the state agency in charge of handling these claims will determine whether you qualify for benefits. If you are bringing a personal injury lawsuit, the judge or the jury will weigh the evidence and decide how much compensation you should receive.

How To Avoid Accusations of Malingering

First and foremost, you should always be honest about your injuries and symptoms. It might be tempting to embellish your symptoms or overstate your pain level in the hopes of getting more compensation. But you should remember that insurance companies, workers’ compensation programs, and defense lawyers have the resources to fully investigate your injuries and can easily catch you in a lie. Workers’ compensation programs and insurance companies will use that evidence to deny your claim outright. A jury that hears that evidence might give you less compensation or none at all.

It’s also important to fully cooperate with medical exams and treatment plans. Medical professionals often consider how cooperative a patient has been when determining whether an injury or symptoms are legitimate. There are a host of physical tests a doctor might perform to diagnose and evaluate your injury. Some of those tests can help doctors determine if a patient is faking their injury. You may not know the purpose of each test, so it’s important to follow the doctor’s instructions and answer all questions honestly. That can help you avoid accusations of malingering and also make sure the doctor has accurate information when making a diagnosis.

What Should You Do If You’re Falsely Accused of Malingering?

Unfortunately, people who are legitimately injured and who have been completely honest about their symptoms can still be accused of malingering. While an accusation needs to be proven with evidence, it is difficult to prevent someone from making an accusation in the first place. If you do not adequately defend yourself against these accusations, you could lose out on the compensation that you need and deserve.

Being falsely accused of malingering is upsetting, and worrying about being falsely accused is also stressful. But you should not downplay your injury or your pain and suffering. Make sure you fully cooperate with doctor examinations and be honest about your symptoms. Your doctor needs accurate information to properly treat your injury, so downplaying your injury can prevent you from getting the care you need. The severity of your injury and the long-term effects on your ability to work and do day-to-day activities also affect your potential workers’ compensation benefits, disability benefits, or personal injury compensation. Do not deprive yourself of the benefits or compensation you need just to avoid a potential malingering accusation. Being truthful is the best way to set yourself up to get the best legal and medical outcomes possible.

When you bring a personal injury lawsuit, both you and the defendant will have opportunities to present evidence about your injury. Both sides will discuss your injury and prognosis, and your doctor might be asked to testify. The defendant can also bring in their own experts to offer opinions about your condition. Sometimes, defendants will bring up accusations of malingering on appeal. This happens when the defendant has lost at trial and has been ordered to pay the injured plaintiff damages. Working with an experienced personal injury lawyer is the best way to defend yourself against false accusations of malingering at any stage of the legal process. An attorney can examine your medical records and work with experts to help you show that your injuries are real and as severe as you say they are.


















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