Liability of Health Professionals Using Sensors, Telemedicine and Artificial Intelligence for Remote Healthcare

Abstract

In the last few decades, there has been an ongoing transformation of our healthcare system with larger use of sensors for remote care and artificial intelligence (AI) tools. In particular, sensors improved by new algorithms with learning capabilities have proven their value for better patient care. Sensors and AI systems are no longer only non-autonomous devices such as the ones used in radiology or surgical robots; there are novel tools with a certain degree of autonomy aiming to largely modulate the medical decision. Thus, there will be situations in which the doctor is the one making the decision and has the final say and other cases in which the doctor might only apply the decision presented by the autonomous device. As those are two hugely different situations, they should not be treated the same way, and different liability rules should apply. Despite a real interest in the promise of sensors and AI in medicine, doctors and patients are reluctant to use it. One important reason is a lack clear definition of liability. Nobody wants to be at fault, or even prosecuted, because they followed the advice from an AI system, notably when it has not been perfectly adapted to a specific patient. Fears are present even with simple sensors and AI use, such as during telemedicine visits based on very useful, clinically pertinent sensors; with the risk of missing an important parameter; and, of course, when AI appears "intelligent", potentially replacing the doctors' judgment. This paper aims to provide an overview of the liability of the health professional in the context of the use of sensors and AI tools in remote healthcare, analyzing four regimes: the contract-based approach, the approach based on breach of duty to inform, the fault-based approach, and the approach related to the good itself. We will also discuss future challenges and opportunities in the promising domain of sensors and AI use in medicine.

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