In recent years we have started to see Artificial Intelligence (AI) being used across medicine from radiology reporting to cancer diagnosis and ophthalmology. Pre-Covid there was already a shortage of radiologists with a knock-on effect on the speed with which images could be interpreted and diagnoses made. The cessation of many screening services during the first lockdown means workload is likely to grow exponentially. AI could assist in managing this, but what are the legal issues?

First and foremost, AI could be a ‘disrupter’ in healthcare law.  Will the law of negligence remain a good model when humans are not routinely involved? How might the fine line between on the one hand it being allegedly unreasonable / illogical to use AI to discharge the duty of care and an alleged negligent omission to fail to use it, be resolved by the courts? In the post-Montgomery era, informed consent involves a discussion of the material risks and treatment options.  To what extent can patients expect AI resources to be provided by a healthcare organisation when there may be other priorities on the service and the cost is very high?

In relation to liability, there is likely to be a tension between the responsibility of individual practitioners and healthcare organisations. The latter will need to ensure that systems are audited, tested and maintained appropriately. Issues with the ‘black box’ / algorithm are likely to involve third party claims against the manufacturer.  Any organisation involved in the delivery of healthcare services using AI and its underwriters should check contracts to identify where liability rests as between the manufacturer, supplier and end users. Only in this way can risk be fully assessed and mitigated appropriately.

Medical Malpractice Forward View 2021 

This article is part of Capsticks’ Medical Malpractice Forward View 2021. 

Read the other articles featured in this publication below: 

• Spotlight on two pending court decisions
• Decision in Maughan may lead not only to an increase in requests for an unlawful killing conclusion at inquest, but have wider consequences
• Resource issues are likely to have a significant role in determining the standard of care in claims arising during the pandemic
• Remote hearings and medical examinations are likely to continue for the foreseeable future
• Safety and learning will remain front and centre in healthcare
• The roll-out of digital healthcare is likely to continue apace
• Artificial Intelligence is likely to assist in the post-Covid recovery of healthcare services, but could be a ‘disrupter’ in healthcare law
• Research and development in life sciences will assume even greater importance as will information governance around the use of apps

Get in touch 

Capsticks advise and support medical malpractice insurers and healthcare providers on all aspect of medical law including claims, inquests and regulatory proceedings. 

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Anna Walsh, or Philip Hatherall.