INTRODUCTION
The ambit of liability of medical professionals or medical practitioners in cases of medical negligence has to undergo lots of legal procedures and usually the liability of a medical practitioner is very difficult to prove under law. This is because the term medical negligence is narrower in meaning than that of ordinary negligence under the law. The following article will discuss the concept of medical negligence and the liability of the healthcare practitioner in cases of medical negligence and malpractices. Further, the Article will discuss the interface of Artificial intelligence in medical diagnosis and treatment in modern times, the article would discuss government policies and plans related to regulations of AI in the health care sector. It will also discuss various types of Artificial Intelligence and especially those specific types which are currently used in the healthcare sector. The article mainly focuses on the discussions and issues pertaining to the distribution and assigning liability in case of medical negligence when Artificial intelligence is involved in the medical diagnosis or treatment.
DIFFERENCE BETWEEN MEDICAL NEGLIGENCE AND ORDINARY NEGLIGENCE
In law, there is a difference between negligence under tort and medical negligence.
The essential requirements to constitute ordinary negligence are:-
- There is a duty of care endowed upon the person by law.
- There is a breach of that duty by that person.
- Due to that breach, an injury occurs to the other person.
In ordinary negligence, the concept of ‘res ipsa loquitur’ is followed, which means things speaks for itself (i.e The defendant will be held responsible for negligence if the plaintiff’s injury was caused by the defendant action’s, even though there is no direct evidence of the defendant’s lack of due care.), but in medical negligence, this concept is not strictly followed.
Medical negligence comes under the concept of professional negligence. When there is an absence of reasonable care or skill or willful negligence on the part of the medical practitioner in the treatment of the patient whereby the health and life of the patient are endangered then it is called professional negligence. In medical negligence, instead of a duty of care the essential condition is, there must be a standard of care i.e. followed by the community of medical professionals and that standard of care must be followed by the practitioner. Also, in the case of Indian medical association Vs V.P Shanta[1], the three characteristics of occupations that can be termed as a profession were laid down –
- The specialized nature of the work is skilled or where the substantial part is mental work rather than manual.
- There is a commitment to moral principles beyond the general duty of honesty and a wider duty to the community which transcend the duty to particular clients
- A Professional association that regulates the admissions and seeks to uphold the standard of the profession through any professional codes with respect to conduct and ethics.
In a landmark judgement of Bolam vs Frien hospital management committee, 1957 [2] Judge McNair stated, “A medical practitioner is not guilty of negligence if he/she has acted in accordance with a practice accepted as a proper form of practice by a responsible body of medical persons skilled in that particular art.” It means that if a doctor reaches the standard of a responsible body of medical opinion then he is not negligent. This system is also called the ‘peer review system’ and it’s still followed across many jurisdictions including India. Hence, if the practitioner fails to match up to the required standard of care and an injury occurs to the patient then the practitioner can be held liable for medical negligence.
Medical malpractice is when there is a violation of the standard of care due to which there occurs an injury to the patient and that injury resulted in significant damages to the patient. The only difference between medical malpractice and medical negligence is that medical negligence is unintentional actions that a person fails to perform which a reasonable person would have performed but in malpractice, there is willful professional misconduct resulting in injury or damages to the patient.
ARTIFICIAL INTELLIGENCE
AI is considered the largest technological revolution of our times, despite that; there is no pinpoint the definition of “what is AI”. Hence, to only understand the meaning of AI we can state that, “AI can be an area of computer science that emphasizes the creation of intelligent machines that works and react like human beings”. AI is not a new phenomenon and since the past 70-80 years, various computer scientists, mathematicians and philosophers have discussed aspects of AI development and the AI revolution. Alan Turing developed the famous Turing test to determine if a machine is a truly intelligent machine in the year 1950. The main purpose of the test is, “to determine whether or not a computer/machine or Artificial Intelligence (AI) can think intelligently like a human.” For testing the same he suggested the adaption of the Victorian style contest called the imitation game, where a man and woman are secluded from an interrogator who will be asking questions and by studying the written replies the interrogator will guess which one is who. Now current times, i.e. as late as 2020, no AI in totality has been able to pass that test, even though some scientists claim that the Google assistant launched in 2018 has passed the test. Today, AI is not limited to what Turing had imagined an intelligent machine to be. Even though a full-fledged AI who thinks and functions like a human is still a far-fetched goal, but AI, efficient at specific tasks to perform specific functions are already available in the market. In fact, there are tasks in which AI performs better than humans, for example; Alpha goes defeated the world champion, Lisa Dahl, by 4:1 in ‘go’, thereafter the advanced version Alpha zero defeated Alpha go by 100:0 and is undefeated since then and similarly chess champion Gary Kasparov was defeated by AI deep blue in 1997. Recently a GO champion from Korea, retired after losing from the Alpha Go AI and declared the AI Invincible[3].
There are broadly 3 categories of AI –
- Artificial Narrow Intelligence (ANI) or Weak AI – an AI or machine that performs some specific tasks that a human could do, or basically the AI’s functions are limited to a single type of task or a set of tasks. Example : all the examples of AI mentioned above such as deep blue, alpha zero, alpha go are efficient in specific task and will fail in other tasks that a human can perform so they can be said to be artificial narrow intelligence.
- Artificial General Intelligence (AGI) or Strong AI – It can complete a wide range of tasks in a wide range of surroundings, an AGI can be considered to be much closer to resemble a human in thinking, behaving and solving problems like a human being. Basically, Artificial General Intelligence is like an exact duplicate of a human being or a replica of a human being in thought process and behaviour.
- Artificial Super Intelligence (ASI) – it refers to such intelligent machines or programs which will be more intelligent than human beings or better at every function that a human being may be able to perform and even those functions that human beings may not be able to perform.
Currently, AGI and ASI are still hypothetical and scientists around the world have not been able to make them, however, ANI is not only active, but also available in many sectors assisting humans to enhance the efficiency of work in those sectors. AI discussed in this article will be pertaining to specifically ANI.
AI use in various sectors such as financial accounting, education, agriculture and even healthcare is rapidly increasing. In fact, various reports have suggested that AI will intervene in more than 50 per cent of sectors in the future. In healthcare we have already seen that AI has entered the medical diagnosis and treatment level.
ARTIFICIAL INTELLIGENCE AND MEDICAL NEGLIGENCE INTERFACE
According to Niti Ayog’s report on AI, in India, there is a shortage of qualified healthcare professionals, i.e. currently the ratio of doctor to patient is 1 to ten thousand patients as opposed to the WHO’s standard requirements of the ratio of 1 doctor to 1000 patients. Also, it is believed that AI can make health care cheap in the long run. In India, there are people who do not have access to proper medical care. Hospitals are located in prime cities due to which it becomes problematic for people from the rural area to access the same and according to Niti Ayog’s report, with the advancement of AI in the medical sector such problems can be tackled with ease. The government also believes that AI has the potential to overhaul disease tracking and management[4]. In many jurisdictions, including India AI like IBM Watson has already replaced doctors and is competent to perform various diagnoses like X-rays etc. better and more efficient than doctors as published in a Harvard business review blog[5]. In fact, the health care sector is ongoing rapid changes, it is also believed by many thinkers and scientists that in near future AI can take the jobs of radiologists, cardiologists and many other fields of medical practitioners. With this being said, a question can be raised with respect to attribution of liability in case of errors in the algorithms or by the AI resulting in injury to the patient.
Even today, the medical negligence cases which involve only human medical practitioners are considered difficult to attribute liabilities, due to many different, but correct forms of treatments for a single disease increasing the no. of standard practices by the standard medical body and other issues. In India, it is often found that the doctor’s liability has been attributed in a handful of cases, including vicarious liability of hospitals; in fact, the development of attributing medical negligence and seeking compensation etc has taken place at a later stage and is still considered to be in the developing stage by many.
Even if we take into consideration the previous judgements and case laws or legal principles concerning the healthcare sector and medical negligence, they were made keeping in mind humans as the main practitioners or healthcare professionals.
However, if now the rapid speed of AI development in the health care sector remains the same, then along with benefits, there will be serious legal issues and implications that the legislators have to address beforehand only. Currently, AI is not even included in any legislation or bare Acts, in fact, the ministry has even stated that in near future there will be serious involvement of AI in the health care sector, agriculture sector and finance and accounts sector, but till now, not even a single bare act provision or case has come where even the term AI is mentioned apart from the Niti Ayog report and ministry of commerce report on AI[6].
If we look at the liability aspect then, for now, we can say that, if AI involvement is increased then,
In any case where an AI is working or is supervised by a medical practitioner and the medical practitioner does some mistake in handling it, due to which the patient is dead, now whether the mishandling of that AI will be considered medical negligence or not is a question to ponder upon. Because medical negligence as mentioned above in the Bolan case is defined by the standard of care as per a reasonable medical body.
When the AI is at fault, then who will be responsible for the same, the medical practitioner has already done his or her part with due care, then whether the AI developer will be held liable or the owner of the AI i.e. the hospital will be held liable is another question to ponder upon. Because even though the hospital has vicarious liability over doctor’s or nurse’s actions as it was held in M/s Spring meadows hospital and another Vs Harjol Ahluwalia 1998[7], but still whether the actions of AI will be considered as actions of an agent or not is still a question that needs to be answered.
Lastly and most importantly, the pertinent question if AI interface in healthcare develops at a rapid rate then if there is no mistake or intention in part of AI developer, there is no mistake or intention in part of the human medical practitioner, but due to unforeseeable reasons the AI itself misdiagnose the symptoms and give incorrect treatment to the patient resulting in injury to the patient. In such a scenario, who shall be held liable is another pertinent question.
CONCLUSION
It can be concluded that the AI interface is going to grow only and with this growing involvement of AI in the healthcare sector, there is an urgent need for legislation to regulate the use and issues pertaining to legal implications with the use of AI. It is clear that AI interface is necessary because the current medical system is inefficient as it is still unable to meet the demands of WHO guidelines, so the AI interface will definitely help in achieving those goals and improving the health standards of the people of the country. Still, there are many issues related to the inclusion of AI in healthcare such as the attribution of liability in cases of medical negligence, issues related to the legal personhood of AI when functioning as a substitute or replacement of a medical practitioner in the near future. The issues pertaining to negligence in the part of AI due to errors in diagnosis of symptoms and other diagnoses such as radiology etc. it can be said that the country is taking baby steps toward including AI in legal books and definitions, but taking huge steps in including AI in the health care sector.
References:
1. 1996 AIR 550, 1995 SCC (6) 651, https://indiankanoon.org/doc/723973/
2. [1957] 1 WLR 582
3. https://www.theverge.com/2019/11/27/20985260/ai-go-alphago-lee-se-dol-retired-deepmind-defeat
4. https://niti.gov.in/national-strategy-artificial-intelligence
5. https://hbr.org/2019/10/ai-can-outperform-doctors-so-why-dont-patients-trust-it#:~:text=Medical%20artificial%20intelligence%20(AI)%20can,Service%20in%20lieu%20of%20nurses.
6. Supra 4
7. https://indiankanoon.org/doc/1715546/
About the author –
This article has been written by SHUBHANKAR DAS, 5th Year B.A.LL.B (Hons.) student at Institute of Law, NIRMA University.
