Download NOTES AND COMMENTS The Legal Challenge of Incorporating

90
Journal of Health & Life Sciences Law
NOTES AND COMMENTS
The Legal Challenge of Incorporating
Artificial Intelligence into Medical Practice
Amanda Swanson and Fazal Khan
ABSTRACT: Artificial intelligence (AI) offers the potential for great improvement in patient care and a consequential reduction in healthcare costs. These
new technologies are utilized more frequently in medical care delivery, but
the law has not caught up with these advances. Although its use will facilitate
clinical decisionmaking and reduce medical errors, AI’s use in healthcare
exposes individual providers and facilities to increased risk of medical malpractice liability that could result from reliance on a technology that may
malfunction or recommend a course of action based on a factual inaccuracy.
Legal issues also arise for payors and facilities if policies enable AI technologies
to effectively control providers’ care. One possible answer may be enterprise
liability, which would relieve individual physicians from liability for any inevitable technology failures. The involvement of all healthcare industry sectors
likely would enable the best possible safety improvements to be discovered
and implemented, greatly increasing the safety of AI technologies and avoiding
the disincentives to use that malpractice liability poses for providers.
KEYWORDS: Artificial Intelligence, Electronic Health Record, Clinical Practice
Guidelines, Evidence-Based Medicine, Case-Based Reasoning, Privacy, Medical
Malpractice Liability, Corporate Practice of Medicine, Enterprise Liability
CITATION: Amanda Swanson and Fazal Khan, The Legal Challenge of Incorporating Artificial Intelligence into Medical Practice, J. Health & Life Sci. L., October 2012, at 90. © 2012
American Health Lawyers Association, www.healthlawyers.org/JHLSL. All rights reserved.
Author biographies appear on the next page.
Journal of Health & Life Sciences Law—Vol. 6, No. 1
Author Biographies
91
Amanda Swanson, Esquire, is an Illinois licensed attorney and received her
LL.M. in health law and her J.D. from Loyola University Chicago School of Law.
She can be reached at [email protected].
Fazal Khan, M.D., J.D., is an Associate Professor at the University of Georgia
School of Law. He specializes in healthcare law and received his M.D. and J.D.
from the University of Illinois Urbana-Champaign. Contact him via email at
[email protected].
Journal of Health & Life Sciences Law—Vol. 6, No. 1
92
Swanson and Khan: Artificial Intelligence in Healthcare
Swanson and Khan: Artificial Intelligence
in Healthcare
CONTENTS
Introduction............................................................................................. 93
Uses of Artificial Intelligence in Healthcare.......................................... 96
History of AI in medicine................................................................ 96
Knowledge management................................................................. 99
Diagnosis and detection................................................................ 101
Clinical decision support programs.............................................. 105
Improving physician extender care.............................................. 114
Legal Implications................................................................................. 116
Privacy............................................................................................. 116
Liability of providers/users........................................................... 118
Implications for payors.................................................................. 129
Responses—Enterprise Liability........................................................... 134
Conclusion............................................................................................. 145
Journal of Health & Life Sciences Law—Vol. 6, No. 1