In this article...

• What is exaggeration?
• Why do Claimants exaggerate?
• What to do if you suspect exaggeration?
• What if the claim is taken further and proceedings are issued?
• What can you do to help during proceedings?

You receive a letter of complaint which alleges that a patient has had an unusually bad outcome from surgery. He has been referred to a pain clinic for unexplained chronic pain. He says that before the operation he was a self-employed carpet fitter about to expand his business, but as a result of the negligence he will now never work again. Your clinicians say that his operation went well, without any unforeseen incidents and they cannot understand why he has not recovered well. You are suspicious about the claim. What do you do?

What is exaggeration?

There are different kinds of exaggeration, from the rare case where the incident did not happen at all (rare enough in motor accident claims, virtually unheard of in clinical negligence claims) to a case where a genuine claim is made, which has caused genuine symptoms, but is unconsciously exaggerated for psychological reasons.

Fraud is a false representation, where the Claimant does not believe it to be true, which is made deliberately or recklessly (Derry v Peek (1889) 14 AC 337).

Malingering is the purposeful creation or exaggeration of physical or psychological complaints with the goal of receiving a reward (DSM-IV V65.2).

Exaggeration is an overstatement and can be conscious or unconscious and can be made for many reasons.

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Why do Claimants exaggerate?

Some Claimants exaggerate for financial gain, some for the attention that they get from medical personnel or their solicitors and some do it unconsciously for other psychological reasons.

What to do if you suspect exaggeration?

Firstly you need to examine the claim in more detail to see if your suspicion has any foundation:-

		Does the Claimant’s account of how the incident happened match up with the contemporaneous notes?
		Does the Claimant’s account of his/her pre-incident health match up with his medical records? Remember that sometimes a Claimant can genuinely forget to mention symptoms or not realise that something is relevant, but if there is a clear history of prolonged, repeated, recent or serious symptoms, you need to investigate this further.
		Has the Claimant given a misleading or unusual account of his symptoms immediately post-incident? Your clinicians can assist you with this.
		Has the Claimant exhibited inconsistent signs on examination by your clinical staff (such as Waddell signs in back injury cases)?
		Are there inconsistencies between the Claimant’s account and other documentary records (DWP records, occupational health records, GP records)?
		Look out for the following words, which should raise red flags -Functional overlay -Illness related behaviour
		Does the Claimant have a claims history?
		Are you aware of a reason for a false claim (failing business, unemployment etc)?

If your investigations suggest that there could be exaggeration, ask yourself the following:-

		What are the suspicious circumstances?
		Could they have an innocent explanation? If so, what further evidence would confirm or dispel your concerns about exaggeration?
		Does your evidence suggest that the Claimant knows that he is exaggerating or is it unconscious?
		Is anything else a more likely explanation than fraud?

You should also keep careful note of your investigations in a pre-litigation file, rather than on the complaints file. Where you suspect fraud or a false representation which you believe the Claimant knows is untrue, you should contact your panel solicitor, your NHSLA contact or someone at Bevan Brittan, so a decision regarding the future conduct of the claim can be made. It may be that additional evidence is needed which you would not usually obtain, or that independent medical evidence should be obtained at a far earlier stage or from a different discipline than usual.

What if the claim is taken further and proceedings are issued?

This is a claim where you will need early panel solicitor assistance.

Where it is alleged that a claim has been exaggerated from the outset and the injury has never happened, fraud should be pleaded in your Defence, but this is rare. Although the standard of proof in fraud cases remains the civil standard, the more serious the allegation of exaggeration, the more cogent the evidence to support it must be and of course the burden of proving fraud lies with the Defendant. Taking the decision to plead fraud is a momentous one and not a step to be taken lightly. Remember that the Defence will need to be signed with a Statement of Truth (see Issue No.21).

Often your panel solicitor will need to make a judgment call on whether to plead fraud or that there is exaggeration or whether to deal with the issues in expert evidence and in negotiation. It is always for the Claimant to prove his/her clinical negligence case on the balance of probabilities and so it may be that your solicitor will choose to simply put the Claimant to proof. You can put the Claimant on notice that his claim appears to be exaggerated or excessive and reserve your position on costs. The Courts can impose sanctions where the settlement value bears no relation to the inflated Schedule of Loss or costs incurred (Gavin Hooper & another v Biddle & Co (a firm) 2006).

What can you do to help during proceedings?

If you and your panel solicitor suspect exaggeration, but there is insufficient evidence to justify pleading it, you can help with building a case simply by keeping the issue in mind whenever you deal with the case, its witnesses etc and keeping a careful note of any inconsistencies you find or comments that are made.

If the Claimant is having on-going treatment, keep in touch with the clinicians who are treating him for updates about his condition. Clinicians are often reluctant to label a patient a malingerer and it would be inappropriate to label him that yourself, but you can question them as to his current symptoms and how they fit with the usual expected recovery pattern in other similar cases. Also, always remain alive to the possibility of psychological issues affecting a Claimant’s response to his/her injury.

Genuinely fraudulent cases are extremely rare and most unusual symptoms turn out to have entirely reasonable explanations, but in the rare cases where there is exaggeration, early detailed investigations are crucial.