Abstract

Artificial Intelligence (AI) is revolutionizing the way the United States approaches healthcare. In a monumental push to integrate this technology, healthcare facilities are implementing AI everywhere from patient appointment portals to operating rooms. AI falls somewhere between serving as a physician’s new tool and functioning as a collaborative partner, making it a welcome advancement to many. However, AI’s implementation has not been flawless—the use of AI has resulted in misdiagnoses and surgical errors, leading to serious injuries and the death of patients. There is no federal guidance formally determining who will be liable for injuries caused by AI. Thus, healthcare professionals who use AI in practice face a new wave of potential liability from medical malpractice lawsuits. Correctly allocating liability requires a carefully calibrated legal framework that ensures accountability without overreach. Because the federal government appears inclined either to adopt an incomprehensive regime or to preempt state regulation entirely, an exhaustive framework that meaningfully addresses AI’s role in medical malpractice litigation must be crafted on the state level.

This Note argues that the Colorado legislature should enact regulations that accommodate the various types of AI used in the healthcare industry. Automated AI systems should be treated as products, and failure to warn product liability principles should apply. Physicians using such systems should be classified as deployers of “high-risk AI systems” and granted a rebuttable presumption of reasonableness if they meet specific disclosure requirements to their patients. Autonomous AI systems warrant a two-step inquiry to allocate liability in a principled and equitable manner. Such an inquiry would examine (1) whether the alleged harm resulted from the AI system’s independent decision-making and, if so, (2) identify which actor—the physician, the hospital, or the developer—exerted the most significant influence over that decision. Under this framework, hospitals that fail to adequately assess AI systems or properly train their staff, as well as AI developers whose programming or design flaws contribute to patient harm, could be subject to medical malpractice liability arising from AI use.

This Note highlights the risks of holding physicians overly liable without such legal protections, arguing that increased physician liability could discourage AI adoption despite its potential to reduce provider burnout and improve care delivery. To avoid unjust outcomes, a nuanced framework that acknowledges the differences between types of artificial intelligence and focuses on shared liability is recommended to balance innovation with accountability.

Link to Full Note:

Black box, White coat: Accountability for Artificial Intelligence in Medical Malpractice Law