Medicare patients receive more diagnostic tests and emergency department referrals when treated by physicians who worry more about malpractice liability, regardless of whether states have adopted common malpractice tort reforms, according to a study published in Health Affairs.

The findings indicate that physicians' perceptions of their risk — rather than their actual risk — of malpractice liability predict their practice of defensive medicine and suggest that traditional malpractice reforms, such as caps on damages, don't change how physicians practice. The study analyzed office-based physicians' concerns about malpractice liability and the actual tests and ED referrals — based on claims data — they ordered for Medicare patients with new complaints of chest pain, headache and lower back pain. These common symptoms were chosen because they represent a range of potential underlying problems, from mild and benign to severe and life-threatening and because physicians have considerable discretion in responding to these complaints.

Across the conditions, patients whose physicians reported higher levels of malpractice concern received more services.

Patients with chest pain, for example, were more likely to be referred to the ED if their physician had a high or medium level of malpractice concern, according to the study. These physicians were less likely than those with a low level of concern to order stress tests as a substitute for a more extensive inpatient workup. Likewise, patients with a headache were more likely to receive advanced imaging of the brain, such as a CT or MRI scan, if their physicians had high levels of malpractice concern. Patients with lower back pain who saw physicians with a high level of malpractice concern had a significantly higher probability of receiving conventional and advanced imaging than patients seeing less-concerned physicians.

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