Robodocs: AI-Assisted Medical Decision Making and Medical Malpractice Liability

By: Darl H. Champion Jr.

It is no secret that the cost of healthcare and insurance is going up. With an increased need for process efficiencies, technology that can scale at high rates, and reduction of staffing costs, it is no surprise that AI (artificial intelligence) technology is well on its way to becoming a regular part of the healthcare decision-making process. 

AI TECHNOLOGY IN CLINICAL DECISION-MAKING

Taking the term ‘data driven decision-making’ to an entirely new level, AI tech has many applications.

Human judgment is still (and should remain) the primary processor, but now doctors have access to additional data when making critical and sometimes life-altering decisions about patient care. AI could have a variety of implications in medical care:

It could help doctors make a difficult diagnosis.
It could help doctors find the best treatment for a patient.
It could help doctors triage patients in an emergency or intensive care setting.

COVID-19 ACCELERATES THE ADOPTION OF AI 

The current events of COVID-19 and the pressure it has placed on our healthcare systems has led to a deeper look into of AI in healthcare settings, as well as expedited implementation.

At the start of the United States COVID-19 crisis in March, Seattle and Boston healthcare groups did just that. According to an article published in Harvard Business Review, “In collaboration with Microsoft, Providence St. Joseph Health system in Seattle built an online screening and triage tool that could rapidly differentiate between those who might really be sick with COVID-19 and those who appear to be suffering from less threatening ailments.” 

In its first week alone, the tool served more than 40,000 patients, delivering care at an unprecedented scale and allowing healthcare professionals to focus on critical areas.

Using an AI algorithm in the form of what could be only called “med bots” to diagnose COVID-19 has already proven to be the right choice, but does raise the question again: at what stage in the diagnosis process do human healthcare professionals step in and make an informed clinical decision? And should patients be made aware of the role AI is playing in their medical care?

Bringing it closer to home, Georgia is no stranger to AI in healthcare. In addition to the American College of Radiology’s pilot program started in 2019 at Emory University in Atlanta, Jvion AI announced in May 2020 that it has launched an online COVID-19 back-to-work assessment in collaboration with Augusta University Health System using a proprietary AI algorithm. According to the press release, the initial assessment will be used by employers in Augusta, GA, but it is already to scale nationally to identify employee risk for exposure and infection. 

LEGAL IMPLICATIONS OF AI-BASED MEDICAL DECISION MAKING

COVID-19 may be accelerating the adoptions and use of AI, but it is far from its only potential application. AI could be used in routine medical decision, including making regular diagnoses that doctors typically perform solely based on their education, training, and experience. 

Imagine. A patient walks to the emergency room with a variety of symptoms, including a fever, a swollen knee, and an elevated white blood cell count. Typically, the medical provider would perform what is called a differential diagnosis, which is where the provider lists a variety of conditions that could be causing the patient’s condition and then takes steps to rule them out or rule them in. 

But with AI, a computer assists the doctor in the differential diagnosis process by listing out a variety of medical conditions the doctor should consider. The doctor relies on the list and makes a diagnosis. If the doctor gets it right, great. But, what if the algorithm does not list the medical condition that as a potential cause of the patient’s symptoms and the doctor gets it wrong?

The symptoms of fever, a swollen knee, and a high white blood cell count are typical signs of an infection—specifically, septic arthritis. If the algorithm, for whatever reason, does not list that condition and the doctor relies on the AI in making the diagnosis, what happens when the patient dies or has serious complications because of an erroneous diagnosis?

This raises another question:  should the patient be made aware of machine-learning AI playing a part in their diagnosis and treatment? And if they should be made aware, at what point in the patient care process should that happen? Additionally, what standards are in place to ensure that medical professionals are not becoming overly reliant on this technology and that the AI algorithms stay up to date?

The legal implications raised by the use of AI and machine learning in healthcare are both unprecedented and complicated. 

• What are the implications if a patient is injured, or even killed, while getting AI-influenced or AI-controlled diagnosis or treatment? 
• What type of discovery will be conducted to find out the role AI played in medical decision that resulted in an error in diagnosis or treatment? 
• Will there be product liability claims if the AI leads the medical provider to make an error?
• Could a medical provider who makes an error while relying on AI apportion fault to the manufacturer of the computer program?

Whatever your opinion on AI in healthcare, two things are certain:  we are only in the early stages of adoption and the technology is here to stay. And, undoubtedly there will be a variety of legal issues that will have to be explored and resolved as AI becomes more widespread.

ATLANTA MEDICAL MALPRACTICE ATTORNEYS

At The Champion Firm, we represent clients in medical malpractice cases in Marietta, Atlanta, and throughout Georgia. Whether the case involves a surgical error, a delay in diagnosis, or some other medical mistake, we have handled it all! Over the last decade, Attorney Darl Champion has helped medical malpractice victims recover millions of dollars in settlements. 

Not only have our top-rated personal injury attorneys helped hundreds of injured Georgians receive millions of dollars they deserved, but we make it a point to stay up to date on all new legal changes and healthcare advances like the increased use of AI we have seen over the last year.

If you or someone you love is injured or killed due to someone else’s negligence please don’t hesitate to contact us. We fight every day for our neighbors and community and remember, you don’t pay unless we win. Call (678) 944-7915 today or fill out the form below.