Doctors, tech leaders and lawmakers all hope to have a say in how the medical malpractice system adapts to the AI era. | AFP via Getty ImagesDoctors using new artificial intelligence tools to help them diagnose and treat their patients say they wish Congress would provide some clarity on a big unanswered question: Who pays if AI makes a mistake?
It won’t happen without a fight. Health tech companies and some hospitals say that doctors making the final call in care are ultimately responsible for their decisions. Now, the policy decisions about AI liability are less about how much compensation a patient gets, but who bears the blame for a mistake.
Unregulated tools could be more vulnerable to lawsuits, according to Mello, because they aren’t protected by the “preemption doctrine,” which bars some claims against regulated devices on the theory that they’re known to be safe enough and effective enough to have received FDA clearance. “The group that I worry about most is physicians,” Mello said. “Physicians are the ones that kind of get left holding the bag.”
Legal scholars foresee plaintiffs arguing that doctors were negligent because they didn’t use the best tools available to them. Insurance companies are taking note of the AI revolution, but making no forecasts on how it will affect premiums.
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