Liability for harm caused by AI in healthcare: an overview of the core legal concepts

Abstract

The integration of artificial intelligence (AI) into healthcare in Africa presents transformative opportunities but also raises profound legal challenges, especially concerning liability. As AI becomes more autonomous, determining who or what is responsible when things go wrong becomes ambiguous. This article aims to review the legal concepts relevant to the issue of liability for harm caused by AI in healthcare. While some suggest attributing legal personhood to AI as a potential solution, the feasibility of this remains controversial. The principal-agent relationship, where the physician is held responsible for AI decisions, risks reducing the adoption of AI tools due to potential liabilities. Similarly, using product law to establish liability is problematic because of the dynamic learning nature of AI, which deviates from static products. This fluidity complicates traditional definitions of product defects and, by extension, where responsibility lies. Exploring alternatives, risk-based determinations of liability, which focus on potential hazards rather than on specific fault assignments, emerges as a potential pathway. However, these, too, present challenges in assigning accountability. Strict liability has been proposed as another avenue. It can simplify the compensation process for victims by focusing on the harm rather than on the fault. Yet, concerns arise over the economic impact on stakeholders, the potential for unjust reputational damage, and the feasibility of a global application. Instead of approaches based on liability, reconciliation holds much promise to facilitate regulatory sandboxes. In conclusion, while the integration of AI systems into healthcare holds vast potential, it necessitates a re-evaluation of our legal frameworks. The central challenge is how to adapt traditional concepts of liability to the novel and unpredictable nature of AI-or to move away from liability towards reconciliation. Future discussions and research must navigate these complex waters and seek solutions that ensure both progress and protection.

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