AI has a significant role, and a growing role, in healthcare. AI can apply massive date to improve diagnosis, treatment program design, drug development and robotic surgery. Medical literature doubles every seven years, promising massive updated data to be processed for analysis by GAI.
Patient concerns: Studies reveal that patient presently are distrustful of advice not delivered by a physician. Pathologists and radiologists see AI as the death-knell of their professions. Surgical robotics is viewed as lacking empathy (Health IT Analytics, 3-2-2022). Handling individual medical data within an expanded AI system runs risks of loss of data privacy.
Who is liable for bad results? If there is an AI diagnosis that is wrong, who is liable? If a robot removes the wrong organ, who is liable? How do you “see” the key medical decision points, and who/what makes them? When will the health care system become sufficiently adept at handling AI so that the benefits outweigh the risks? Since GAI hallucinates (reaches wrong answers within itself), does that mean the programmer is liable? The supplier of the AI? The doctor who failed to pick up an allegedly obvious anomaly? If there is an error, how do you know if it is the AI’s inherent lack of data, its misreading of the data, or a malfunction of the device that reads and delivers AI’s answer?
Patient waiver issues: Will medical ethics require a physician, clinic or hospital to give affirmative disclosure that AI was utilized in health care delivery? In what detail? Will courts enforce a patient release signed after such a disclosure, which release is to some degree dependent on the fullness of the data concerning risk which has been given the releasing patient? Since AI may deliver a statistically correct result and since it is not likely to be 100% effective in every case, even if the AI and the computer work perfectly, must there be a disclosure chart showing percentages of negative results? Can a physician or hospital obtain a waiver of warranty, selling medical advice based on AI “as is”?
The curious reader might look at an article entitled “Artificial Intelligence is Altering the Face of Medicine.” Practical Lawyer, August, 2023.