What Surgeons Need to Know About Medical Malpractice and AI

Artificial Intelligence (AI) technology platforms are transforming the healthcare industry overall and surgical practices in particular as a new mode of patient care. Along with the proposed benefit of AI to support faster clinical decision-making comes an important caveat for surgeons: How will using AI platforms for patient diagnostic and treatment decisions affect your risk of being sued for malpractice?

Although AI is a hot discussion topic among healthcare industry leaders, there is no definitive answer yet on the question of a surgeon’s liability when using AI for patient care. SURGPLI is staying abreast of this developing issue to ensure that you always have the right coverage if you choose to adopt an AI platform in your practice. SURGPLI brokers have compiled the resources in this article to help you stay informed of the current discussions of potential liability risks of AI in surgical practice.

Questions about your medical malpractice coverage and AI? Contact a SURGPLI broker.

Artificial Intelligence for healthcare applications is actually nothing new and has proven beneficial for improving patient care. Orthopedic surgeons, for example, have used AI-driven surgical robotics for joint replacement and spine surgeries for many years. Also, radiologists, pathologists, and other specialists use AI-enhanced imaging programs to obtain more complex views of diagnostic CT and MRI scans.

However, many of today’s emerging AI programs are designed to aid physicians in researching patient conditions and making diagnostic decisions, such as ChatGPT and electronic health records integrated with AI. One huge risk of these AI programs is that they are known to “hallucinate” or degrade over time, causing them to generate false or incomplete information. There is a major concern that if surgeons trust and become more dependent on the recommendations of AI programs than their clinical judgement, this will heighten the risk of making erroneous decisions and result in iatrogenic patient injuries.

Although it is still unclear how AI-related medical errors will be handled in future medical malpractice lawsuits, healthcare industry leaders are sharing their insights. For example, an article published by the Milbank Memorial Fund, an independent organization founded to improve population health and health equity, discussed three types of possible medical liability scenarios involving AI and other machine learning applications (AI/ML):

• Medical malpractice allegations resulting from physicians “failing to critically evaluate AI/ML recommendations” with the result of deviation from the standard of care.
• Negligence allegations in which physicians are liable for implementing an AI/ML system that led to negligent patient treatment decisions by the physician or clinical staff.
• Product liability allegations in which patients can sue the maker of a defective AI platform. However, physicians may be also be involved as defendants if they were consultants for designers of the AL/ML device that caused a patient injury.

Are you thinking of implementing AI in your practice? Contact a SURGPLI broker to discuss the details of your current medical malpractice coverage to ensure it addresses lawsuits involving AI platforms.

Looking forward, we at SURGPLI foresee tort reforms that will either change existing medical liability laws to include AI as a mode of treatment or enact new laws specifically defining liability for medical malpractice allegations involving AI. In turn, we expect these types of reforms may also bring about changes in the way medical malpractice policies are underwritten.

For example, a recent article authored by Johns Hopkins Carey Business School faculty members posed the question if medical malpractice should be a concern when deciding whether or not to use AI when treating patients. The authors discuss scenarios in which physicians are using AI with caution due to concerns about allegations that treatment with AI does not meet current standards of care. But those concerns are likely to dissipate as AI diagnostic platforms become more accurate and advanced, and medical malpractice laws around AI become more defined. The article concludes with a proposal that medical liability legislation needs to be redefined and crafted around a “new standard of care” that includes AI as an accepted mode of patient care.

Using AI programs for administrative, recordkeeping, and scheduling tasks is already an established trend in many medical practices. However, the availability and use of AI platforms for diagnosing and predicting patient outcomes are expected to become more prevalent as new AI diagnostic tools are introduced to the healthcare market. And that can potentially put surgeons at higher risk for new AI-related malpractice allegations.

Now is the time to talk with a SURGPLI broker about your risk factors for a medical malpractice lawsuit involving AI platforms – and ensure that you have the strongest coverage available for your specialty from an A-rated carrier.

Call us at 1-800-969-1339 or email us at info@MEDPLI.com.