GPs using artificial intelligence (AI) risk becoming the ‘obvious target for a clinical negligence claim’ if the technology fails, a medical defence organisation has warned.
The Medical Protection Society (MPS) said the Government should address this by changing the law to share responsibility more fairly to ‘developers, manufacturers and suppliers of AI tools’.
An MPS report argues current consumer legislation has not kept pace with advancements in AI, meaning AI developers are often ‘protected’ from liability because their products are not clearly defined.
The report said: ‘Clinicians could be left in a bind. If they reject an AI output and things go wrong, there is a real and significant risk that they could face allegations of negligence if the AI output was deemed to be appropriate.
‘But if they follow an inappropriate recommendation and the outcome is still poor, they risk becoming the ‘mark’ or the ‘liability sink’ – the obvious target for a damages claim. All of this despite having little control over, and perhaps only a limited grasp of, how the AI system reaches its conclusions.’
According to the MPS, a GP inputting blood test results into an AI system who then follows the clinical recommendation given by the system could be wholly liable for patient safety issues arising from that decision, rather than bearing the liability alongside the manufacturer – even though the AI-generated recommendation was unsafe and inappropriate.
Case study: inpatient care needed following a GP’s decision to increase prescription dosage
A 69-year-old woman was on long term warfarin for atrial fibrillation, with her GP practice undertaking regular monitoring and dosing advice. The patient reported a recent short episode of diarrhoea and vomiting, which had subsequently settled.
Recent blood tests had been inputted into an AI system that assisted with warfarin dose titration, which inappropriately recommended an increase in the warfarin dose. The GP followed the recommendation and increased the warfarin dose.
One week later the patient was admitted to hospital with a gastrointestinal bleed requiring surgery and ICU stay and was found to have an INR significantly above the recommended range.
The patient later put in a claim against the GP alleging that the increased dose of warfarin was inappropriate and had resulted in the haemorrhage and hospital stay.
In this case, the AI-generated recommendation was unsafe and inappropriate. Although the GP retains clinical responsibility for prescribing, the AI developer/manufacturer should also bear liability due to the flawed dosing advice.’
Source: Medical Protection Society
The report urged the Government to ‘develop legislation that would classify AI systems as products subject to strict liability, taking inspiration from the EU’s revised Product Liability Directive whilst being tailored to the UK context’.
Dr Sarah Townley, deputy medical director at MPS, said: ‘AI cannot be governed with the tools of the past. The Consumer Protection Act 1987was never designed with AI in mind, meaning AI systems will largely fall outside of its scope. As a result, those who develop, manufacture and supply AI systems are likely to be shielded from the liability rules that would usually apply if a defective product caused harm.
‘This makes it difficult for patients to bring product liability claims against these parties if harm occurs. The default may therefore be to pursue the end users of the AI through a clinical negligence claim – including GPs: those undertaking private work and those protected by state-backed indemnity schemes.’
MPS Foundation chair, Professor Gozie Offiah, said: ‘AI in healthcare has moved from aspiration to reality. While this brings many exciting opportunities, there is a growing disconnect between the use of AI and the liability framework.
‘This disconnect risks the NHS and clinicians becoming the obvious target for a clinical negligence claim. The Government must act now so the benefits of AI are unlocked, without leaving GPs and the NHS exposed.’
NHS England guidance on AI transcribing software states GP practices ‘may still be liable’ for clinical negligence claims arising from the use of AI.
The transcribing tools – known as ambient voice technology (AVT) – tend to be classified as ‘lower risk’ devices because they do not make autonomous decisions
A DHSC spokesperson said: ‘We welcome the Medical Protection Society’s report and will review its recommendations to ensure patients continue receiving the benefits of AI in healthcare safely and quickly.
‘NHS Resolution is currently drafting guidance on liability with AI and further details will be announced in due course.’
A version of this story first appeared on our sister title Pulse.
