Why “Everyone Else Does It” Feels Like a Legal Answer to Doctors
How a familiar way of thinking about the standard of care can obscure a practice’s compliance obligations
“Everyone else does it.”
I hear this often when physicians discuss how their practices operate. Usually, they are not claiming that a rule does not apply to them. They are pointing to something they have learned throughout their careers: in medicine, what other qualified physicians consider acceptable can matter.
That is a sensible way to think about many clinical decisions. If a physician is sued for malpractice over a treatment decision, evidence that reasonably prudent peers use the same approach may help establish that the care met the professional standard. The problem arises when that way of thinking becomes a general test for whether something in a medical practice is legally permissible.
A physician sees respected colleagues using a particular staffing model, offering a service, or following a prescribing workflow. The practice becomes familiar. Familiar begins to feel accepted. Accepted begins to feel compliant.
Those are three different conclusions.
The standard of care teaches physicians to look to their peers
Malpractice claims often ask whether a physician provided care that met the applicable professional standard under the circumstances. Peer practice may be relevant because it can help explain what appropriately qualified providers regard as acceptable clinical care.
Florida’s medical negligence statute, for example, refers to care recognized as acceptable and appropriate by reasonably prudent similar providers. Other states formulate their standards differently.¹
A physician therefore has good reason to ask, “How are other physicians handling this?” when evaluating a clinical decision. It is part of how medicine is practiced, taught, and defended.
But even in malpractice litigation, common practice is evidence to examine, not an automatic safe harbor. The question remains whether the care was appropriate for the particular patient and circumstances. And outside a question about clinical care, what peers do may have a very different legal role.
Familiarity is not permission
Imagine a physician opening a wellness clinic. Several nearby practices let the same category of employee perform a procedure. A vendor says the arrangement is common. The physician has seen it done for years and has no reason to think anyone is trying to break the law.
The physician may reasonably conclude that the procedure itself is an accepted part of practice. That observation does not answer whether this employee may perform it under the applicable scope and delegation rules, whether physician supervision is required, or whether the clinic has the required documentation.
The same gap appears with medical records, advertising, ownership arrangements, and prescribing workflows. Seeing a practice repeatedly can make it appear normal. The governing requirement still has to be identified and applied to the clinic’s own facts.
This matters in board proceedings. Florida’s physician disciplinary statute, for example, addresses failures involving legal obligations, records, supervision, and medical practice rules.² California’s medical board identifies conduct complaints involving issues such as misleading advertising and failure to provide patient records.³ Whether other practices behave similarly does not, by itself, establish compliance with those requirements.
Board investigations can ask both kinds of question
A medical board may also investigate whether a physician’s clinical care was acceptable. In that kind of case, evidence of professional practice can matter. The distinction is not simply “malpractice versus board.” It is the nature of the issue being examined.
If the question is whether a treatment decision fell within accepted clinical practice, peer conduct may help. If the question is whether a rule required a particular license, record, or level of supervision, the answer comes from that requirement and what the practice actually did. An investigation may involve both questions at once.
That is why a physician can have a medically defensible approach to a service and still have a problem with how the service was staffed, documented, sourced, or advertised.
A better use for “everyone else does it”
When a physician tells me that many other practices do something, I do not dismiss the observation. I treat it as a reason to look more closely. What exactly are those practices doing? Are their clinicians licensed differently? Are they operating under a different exception? Has anyone verified that their arrangement complies with the law?
Peer practice can inform a clinical discussion. It can also point to a workflow worth investigating. It cannot, on its own, answer every legal question in a medical business.
What is common in medicine may help define acceptable care. Whether a practice is lawful requires a separate answer.
Joe Janssen, Esquire
Janssen Private Counsel
Sources
This article provides general information, not legal advice for a particular practice or jurisdiction.
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