I recently read an article by attorney Edwin Lamberth titled “Beating the Malingering Defense” on his firm’s blog. Edwin is an excellent attorney practicing in Mobile, Alabama. I’ve discussed personal injury cases with Edwin on many occasions. His post raises a frequent issue in our personal injury cases.
What is the issue? What is the “malingering defense” used by insurance companies and their lawyers? As Edwin notes in his article, defense lawyers will rarely come right out and say your injured client is exaggerating or faking his injuries. If they did, you could prove them wrong and destroy their credibility. Instead, these insurance company lawyers will imply bad motives, cast doubt on the injured person’s efforts or suggest he may be exaggerating. While an outright accusation of malingering could be proven wrong, a hint or cloud of suspicion leaves doubt that is more difficult to defeat. That’s the plan followed by insurance defense lawyers.
How do you handle shadows of doubt cast by insurance company lawyers in your personal injury claim? Most lawyers for injured claimants ignore the shadow of doubt. But, that is the absolute worst approach in most cases. I agree with the advice offered by Edwin in his article.
First, we identify people who live and work around our injured client. These witnesses can provide valuable and credible testimony concerning the very real impact of a serious personal injury. These witnesses are much more believable than the insurance company’s biased expert doctor who probably spent ten minutes with the injured person before implying he or she was malingering! Friends, family, neighbors, co-workers and actual treating doctors, are far more credible.
Second, we challenge biased insurance experts head-on. These biased insurance company medical “experts” will often use official sounding tests to raise “suspicions” of malingering or exaggeration by the injured plaintiff. We have exhaustively studied most of these ridiculous and unreliable tests. An effective personal injury lawyer must understand the medical terminology and “tests” cited by a defense medical expert.
Most of these insurance company tests are unreliable. Many have been completely refuted by medical studies. I’m always amazed by plaintiff’s attorneys who do not study these tests and allow biased insurance doctors to use them. I could discuss these biased insurance company medical experts and their false tests at length. We take these paid, biased experts seriously and challenge them aggressively.
Usually, we try and force the expert to commit to his or her malingering opinion. Instead of raising suspicions, make them commit. Most will refuse to do so for fear of looking like a fool. If they do commit, then you can prove them wrong through your other witnesses or cross-examination concerning their tests.
Whether they commit or not, we challenge these unreliable tests. Today, I’ll give one example of a supposed “test” insurance company defense medical experts mis-use to claim malingering. In the last month, I’ve deposed two different insurance company physicians who cited this “test” as an implication of bad motive by my injured client. This test is called “Waddell’s Signs.”
When do defense experts typically cite Waddell’s Signs? A defense medical expert will often utilize this “test” where the plaintiff suffered a severe injury resulting in chronic pain. Why do defense experts cite Waddell’s Signs? The expert wants to imply the injured person is exaggerating his or her actual pain. The defense expert will then use this doubt to say 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 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 and uncertain limitations. This is the shadow of doubt the insurance company needs to cast over the jury.
So, what are “Waddell’s Signs” and what do they really show? Basically, the “signs” consist of a 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 these specific maneuvers should not produce such pain. What’s the first problem with these signs? Many physicians fail to perform the maneuvers correctly. Most physicians I have questioned really do not even fully understand the maneuvers they are supposed to perform. Yet, even if performed correctly, positive results do NOT mean the injured person is malingering. The creator of the signs, Gordon Waddell, stated in his research they were NOT intended to identify malingerers. According to research, positive results can mean several things. Positive results may even relate to patients experiencing severe chronic pain from an injury. Subsequent research also suggests Waddell’s Signs have little or no correlation to the issue of malingering. That is, they are NOT reliable. I’ve had numerous 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. 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.
An attorney who regularly represents injured people must understand these medical issues and directly challenge unfounded allegations. We spend considerable time studying the medical research and preparing detailed cross-examinations in our cases.
From its office in Huntsville, the Blackwell Law Firm helps injured people across Alabama. We spend all our time and effort studying and preparing personal injury cases. We believe your lawyer should focus solely on preparing these cases for the maximum recovery of damages possible. If you have questions about a personal injury issue, let us know. Consultations are always free and confidential.