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Rethinking Liability and Licensing for Doctors in the Era of AI: Insights from Company Law

Abstract

As the AI revolution in the healthcare sector begins, it is time for the law to identify regulatory issues that might require a rethink under the new era. Since technology in this sector has enormous potential to improve access to healthcare, States should ensure that regulations do not stymie the AI revolution in the healthcare sector. However, a number of legal and ethical issues need to be carefully considered in this regard. While privacy is a major concern, there are also other important issues that need to be resolved. This paper will focus on two issues namely, (i) determination of liability; and (ii) licensing of medical professionals.

The basic ‘duty of care’ imposed on all medical professionals must now be re-applied to situations where the healthcare is provided with the help of AI. It is helpful to look at how previous leaps in technology have been addressed in this regard. Today telemedicine is commonly used in many countries. Singapore’s guidelines state in this regard that there must be a clear determination of who has the ongoing responsibility towards the patient, in a situation where more than one medical professional in involved. Further, it states that all medical professionals involved will be subject to the duty of care. Similarly, attribution of the duty of care becomes important even when AI is involved. Since we are still at a stage where AI systems have not completely replaced humans, the medical professional must be subject to the duty of care, even if he/ she is assisted by the AI system. Rules around reliance on advice provided by the AI must be on the lines of directors’ reliance on external experts’ opinion in the context of corporate law regimes. Thus, the medical professional must still be required to apply his/ her mind to the opinion given by the AI before acting upon it.

It is also essential that the medical professional using the AI is sufficiently trained to precisely use the AI system. The large number of lawsuits filed against doctors conducting robotic surgery might be attributed to the lack of adequate training standards established in this regard. It is logical to assume that a medical professional, delivering healthcare service with the health of an AI system might have adequate training to use the system. Again, a parallel can be drawn with telemedicine regulations. Singapore’s telemedicine regulations requires medical professionals to be trained in the use of the technology employed in telemedicine.

The next significant issue is that of licensing. The medical profession is highly regulated and medical professionals need to be registered in each jurisdiction (sometimes in each state) where they practice. Since the use of AI will allow medical professionals to treat patients in other states and even countries, it might be time for States to agree upon international standards for medical professionals to be able to deliver healthcare services. In the meantime, however, it might be important for institutions that provide healthcare services to patients located in other countries, to ensure that they contractually agree upon these issues.

 

Akshaya Kamalnath
– Daekin Law School, Australia

 

  • Background
    Akshaya Kamalnath has just completed her PhD on ‘gender diversity on company boards’ at Deakin University. Her research areas include corporate law, corporate governance, corporate insolvency. Prior to entering academia, she has worked as a corporate lawyer in one India’s leading law firms. She currently works as a lecturer at Deakin Law School in Melbourne.
  • Education
    B.A.LLB (Hons.), NALSAR University, Hyderabad, India
    – LLM (Corporations Law), NYU Law School, New York, U.S.A.
    – PhD, Deakin Law School, Deakin University, Melbourne, Australia
  • Selected Publications
    ‘Are gender diverse boards better for corporate governance? Evidence from Australian judicial decisions’ 30 AJCL 1 (2015) 58.
    – ‘The Value of Board Gender Diversity vis-à-vis the Role of the Board in the Modern Company’ (2015) 33 C&SLJ 90.
    – ‘Mandatory Corporate Social Responsibility as a Vehicle for Reducing Inequality: An Indian Solution for Piketty and the Millennials’ (co-authored with Prof. Sandeep Gopalan)10 Nw. J. L. & Soc. Pol’y. 34 (2015).
    – ‘Corporate Governance Reforms In India – Accommodating Local Culture along with the Drive for Global Convergence’ KLRI Journal of Law and Legislation Vol.3 No.3, 137-168, 2013.
    – ‘Women in Boardrooms- Formulating a Legal Regime for Corporate India’ (co-author, Yamini Peddada) Journal on Governance, Vol. 1 No. 6 Year 2012, NLU, Jodhpur.
    – ‘A Global Administrative Law Approach to Regulating Transnational Corporations with respect to Human Rights Violations in Developing Countries’ CALQ (2013) Vol. 1.3.
    – ‘Cross Border Insolvency Protocols – A Success Story’ 2 e-IJLSR 172-190 (2013).