Medical Pros Risk Malpractice Suits by Avoiding AI Innovation

AI tools are flooding the market, posing the question of how much companies should allow artificial intelligence to replace human judgment and which areas should remain out of bounds. Health care is a prime example, with 64% of organizations expecting to build AI into fundamental aspects of their businesses in two years, compared to 49% for other sectors, according to a 2024 report.

Giblin suggested a scenario where a patient goes in for a mammogram, but the facility doesn’t use AI for cancer detection.

“And they miss the fact that I have breast cancer, but the AI would have caught it, and they could have used the AI, and they just chose not to,” she said. “That, in of itself, could be seen to be the malpractice.”

While AI is sometimes overhyped, and its role in medicine still emerging, there is wide agreement that even when it doesn’t outperform humans, it can augment human judgment. In some cases, AI already appears to be doing a better job than humans.

A study published this year in the European Journal of Cancer found that commercially available AI software used to detect lung cancer in the UK “resulted in less misclassification than human reads.” The paper concluded that using AI “to rule-out negative CT-scans, shows considerable potential to reduce CT-reading workload and does not lead to missed lung cancers.”

Standard of Care

Once physician and nursing professional groups begin establishing “standard of care” guidelines that address AI use, providers and nurses can be sued for malpractice if the lack of use of artificial intelligence tools cause harm, said Brian Anderson, the CEO of Coalition for Health AI, a nonprofit.

Doctors, nurses and health systems need to work closely with specialty health groups to understand what the standard of care is, he said. “If they are NOT using AI tools, then they need to fully inform and get consent from patients so they understand AI is not being used, and to not expect the benefits from those tools,” Anderson said in an email.

His advice: Make reasonably appropriate and best efforts to use AI tools in ways that make sense for your organization.

“I agree that we are moving in a direction where AI adoption will become a professional standard of care, but we are not quite there yet,” said Anton Korinek, a University of Virginia economics professor who researches the impact of AI on business. “First we need established consensus that using AI constitutes ‘best practice’ with failure to do so potentially constituting a breach of the duty of care.”

That would require definitive and common evidence of AI’s superiority with professional guidelines and validated standards, he said.

“Companies should conduct regular technology assessments and stay informed about industry standards so they can demonstrate that reasonable steps were taken to meet the evolving standard of care,” Korinek said.

Aalpen Patel, chief clinical and innovation office at MedQuest Associates, a company that offers diagnostic imaging such as MRIs, CT scans and mammography, said there are certain challenges to AI adoption in healthcare right now because of issues around workflow integration.

“The integration has not been perfected yet, or the standards have not evolved to that point,” Patel said.

Still, things are advancing quickly. And when AI does become part of clinical guidelines or the standard of care, there will be an argument to be made for malpractice suits, he said.

“If you’re not following standard of care, then that opens you up,” Patel said.