AI, health care and law – part 3

LIABILITIES

It is interesting to determine the Legal Liabilities in the context of AI in health care. Medical Malpractice forms part of general negligence under Law. Given the fact that, negligence is attributable to breach of duty caused by the omission to do something which a reasonable man guided by those considerations, which ordinarily regulate human affairs would do, that which a prudent, rational/ reasonable man would not do. Usually, elements of negligence include duty to care, violation of duty, resultant injury, injury should be linked to violation of duty. Usually, negligence in context of health care can occur in advice/ counselling, diagnosis, treatment. However, in case of AI system used in the context of health care matters become very complex.

An interesting question in this context is can an AI Algorithm be sued for malpractice? However, the capacity to sue and to be sued can be determined only in case some legal recognition at least limited recognition is accorded to AI. Can AI Algorithm be subject to duty and care? Can AI used in Robotics Surgeries be subject to wrongful or incorrect conduct of operation?

In case an AI Algorithm is engaged for counselling and therapeutic sessions and does not sufficiently advice or counsel the patient regarding their medical conditions to prevent harm from occurring then it may amount to negligence. Can the AI Algorithm be subject to such negligence?

In case a patient is wrongly diagnosed or misdiagnosed by an AI Algorithm, then it amounts to a tort of negligence. However, in this scenario can a doctor using the AI technology also be liable for such misdiagnosis. However, if the AI Algorithm gets more and more accurate using machine learning techniques than a Doctor, then it may be difficult to attribute negligence to the doctor, since the Doctor is not the coder of such Algorithms. Can AI Algorithm be considered as a product within the ambit of Product Liability in the context of health care?

The net effect of which means that it is a form of Strict Liability where in the burden of proof will lie on the defendant, in which case the manufacture of the AI based software/ product and not the patient. However, the issue of strict liability brings in a new twisted option since human beings and AI are working together in the decision-making process and casting liability on the human being alone may be a challenge.

Can AI be brought under the private law regimes for compensating patients suffering from harm due to the errors or issues of the AI Algorithm.

However, in case it is found that there is a defect in the AI system in the context of Health Care that has resulted in the cause of patient’s injury, then the manufacturer shall hold liability of the same. further, in case the patient’s injury is a resultant of failure to properly handle and maintain the AI system, then the Doctor shall also be cast with contributory negligence. Vicarious Liability is usually applied in situations where one can be held responsible for the acts of the other, usually in case of employee employer relationships. In the context of AI, in health care can the Doctors /hospitals be liable for the negligence of the AI Algorithm. However, in order to attribute liability to the Doctors/ hospitals in this scenario a legal relationship should be established between the Doctors/hospitals and the AI Algorithms. In this kind of scenario some kind of legal recognition should be provided to the AI.

Can AI Algorithms qualify to be rendering professional advice like Doctors? Do they require any specific medical licenses or specifications in this regard? In case of any issue arising thereof, what is the landscape of legal liability will be interesting questions in the context of AI in health care.

CASE STUDIES

AI CHATBOTS-HEALTH CARE

The AI based Chatbots are developed with Machine Learning Algorithms including natural language processing in order to provide real time assistance to Health Care Providers, Professionals, Patients, thereby transforming Health Care, Patient Care, and Medical Care.

AI based Chatbots are being used to provide assistance to patients with regard to booking of medical appointments, knowing the status of their appointments, medical reports status and are used to sort out any grievances thereof.

Chatbots are primarily used in Health Care Industry for providing Information, by the way of pop-up Notifications. However, most of these Chatbots are used as tools or bots for providing enhanced customer support, by providing automated information. Further, Medical Chatbots are used by medical professionals for the purpose of getting assistance with regard to the Patient’s Medical Conditions and to offer different Medical Solutions to the Patient’s Health Conditions. Further, these Chatbots also provide Information relating to Medicines, their Dosage, Adverse Effects, and have the potential to improve the Health Care Industry.

These AI based Chatbots also raise some Medico Legal as also Legal Regulatory Aspects.

AI-TELEMEDICINE

AI and Health Care has also revolutionised Telemedicine and Telehealth Applications. AI, Telemedicine and Telehealth are empowering remote patient monitoring offering better diagnosis addressing Hospital Work Force issues supporting Health related Education. AI and Health Care has also taken over automation of manual and repetitive tasks of collecting, analysing data including medical records and history. AI in Telemedicine is assisting the Doctors and Medical Professionals to diagnose, monitor the Patients Health Conditions and progress and is also providing assistance in health-related counselling. It is very interesting to note the kind of Doctor-Patient relationship with the application of AI in Telemedicine. AI Algorithms are also helping in detecting the occurrence of certain rare genetic diseases and disorders by analysing the photographs of the Patients during the Telemedicine Consultations. Further, the AI Algorithms in Telemedicine can be used for comparison of the old photographs with the new photographs of the Patient in order to identify the intensity of the disease or medical issue.

The AI Algorithms are also analysing the medical history of the Patients and are suggesting the best possible medical treatments to the Patients and helping the Doctors and Medical Professionals during the Telemedicine Consultations reducing the time and costs. AI by way of facial recognition can help in identifying the Patients and the Doctors during the Telemedicine Consultations. The application of AI in Telemedicine can also alert the Doctor in regard to the seriousness and the medical condition of the Patient thereby identifying the Emergency Cases. AI in combination with Cloud Computing can augment the Health Care Services to a next level. AI by way of facial recognition can also detect the Doctors fatigue and can also predict the screen time of the Doctors during the Telemedicine Consultation as also how many Patients the Doctor will be able to see before burning out. AI in Telemedicine can also help in better creation and management of medical records.

AI-ROBOTIC SURGERIES

Surgical Robots are being developed with the application of AI and Robotics. These Surgical Robots are used for Procedures that require repetitive movements. AI in combination with deep Machine Learning is used for automating processes which is collected by observing the Medical Surgeons while performing surgeries. These AI based Robots can avoid unintentional and accidental movements. Given the Data and Algorithms, AI shall be able to determine the patterns with surgical procedures for coming up with best practices and improving their accuracy and precision. AI can also be used for identifying the procedures and steps in real time by analysing the videos of surgeries. They can also improve the outcomes of Patients, by accessing and treating diseases while integrated with medical procedures, instrumentation, and other technologies.

AI-NURSING

AI in Nursing has potentially helped nurses to improve the quality and efficiency of Nursing Care. AI applications including Machine Learning, Deep Learning, Natural Language Processing can aid in Nursing Research and Practice and can play an effective role in patient caring and outcomes. AI Algorithms shall be relevant in Nursing since these Algorithms can create Electronic Health Records in Patients and can analyse and help in Patient Monitoring. Integrating Data from Electronic Health Record AI can be used for providing Information regarding Patient’s specific preferences and can identify potential risk and help the nurse with nursing notes by providing analysis of the same. However, the AI Systems through Machine Learning can aid in sending Warnings or Notifications to the nurses in case of any immediate interventions. AI in Nursing Care can transform Nursing Care from reactive to predictive and enable more intelligent and smart Nursing Aids. The recent developments of AI in Nursing include Automating Nursing Documentation, Alerting and Notifying Nurses in cases of any Patients Movements, Breathing, Postures and Positions, Automatic Intimation of Completion of Saline Bottles, Remainders for giving Medications.

AI-MENTAL HEALTH

The use of AI in Mental Health Care is already being explored where in AI Algorithms are used for early detection and diagnostics of Mental Health Issues including Bipolar Disorders, Depression, Schizophrenia. The Mental Health issues are treated based on the Language Interaction, Speech, and other gestures during the Counselling and Therapy Sessions. AI by way of Machine Learning and Deep Learning based on Algorithms is capable of analysing the Speech Data and other interactions and can aid Psychologists and Psychiatrists. These Machine Learning Algorithms shall be able to analyse the Data and diagnose the Mental Illness. AI as a technology can dramatically improve research and treatment using its smart Algorithms for analysing the pattern and behaviour of Human Beings. AI shall act as a Virtual Mental Health Agent suggesting and predicting steps and strategies to be followed during the treatments. Further, AI by way of facial recognition can analyse and perform Health Assessments and can improve the user’s wellbeing. Needless to say, AI could also help in management of Mental Disorders given the anonymity and accessibility of the AI Algorithms.

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