AI-ming for Better Healthcare: Legal Issues in Healthcare AI Usage

Farisa Khan

Associate Editor

Loyola University Chicago School of Law, JD 2024

Artificial intelligence (AI) is a simulation of human intelligence that is subsequently processed by machines. It has revolutionized the healthcare space by improving patient outcomes in a variety of ways. It has also begun to leave a positive impact in health systems and hospitals as healthcare worker burnout remains on the rise. However, there are significant legal challenges that accompany its groundbreaking nature. Hospitals and health systems have a duty to mitigate these legal challenges and understand that AI should be used as a supplement, not a replacement, to human intelligence.

What is artificial intelligence in healthcare?

Artificial intelligence has become one of the most groundbreaking innovations in the healthcare industry. In a traditional hospital setting, a healthcare provider would assess a patient and record medical information in the patient’s medical history. The provider, or group of providers, would work to diagnose and treat the patient’s disease. Thousands of patients’ data, including summaries, charts, and prescription orders, are stored in each health system. Providers also use this information to bill private and government insurance for reimbursement.

AI can streamline numerous processes. First, it can reconcile any gaps in the medical records by creating chart notes, summaries, test orders, and prescription orders. The technology can also organize the information within the medical records, as well as through protocols, standards, and even emails. It compiles all of the data and compares it to find connections between diseases, treatments, and patients. As a result, it can provide individualized treatment recommendations and diagnoses by pulling information from medical journals and other materials combined with all it has learned from the patient data.

Additionally, AI technology can help physicians better recognize specific diseases and its nature by looking at photos, EKGs, and CT scans. The predictive analytics technology can help physicians determine which patients are at risk of readmission. The technology can also provide progress updates and detailed histories to hospitals to streamline the treatment approach. Finally, AI software can enter, process, and adjust insurance claims to avoid human error. The overall use of artificial intelligence betters patient outcomes, streamline hospital processes, and assists physicians by completing a substantial portion of the grunt work.

Potential legal issues

There are many legal concerns that accompany the use of AI, largely in the space of confidentiality and privacy. Since the technology has access to vast amounts of data, there is a risk of data breach. Patients may not be aware or consent to having their information accessed and utilized, even if it is deidentified, to assist in research, diagnosis, and treatment of others. Furthermore, if identifiable data can legally be accessed by artificial intelligence technologies, we still need to better our understanding of how to secure the data and prevent it from ending up in the wrong hands.

Nothing is flawless, and AI is no exception. There is no guarantee that the information, diagnosis, or treatment it is providing is actually correct and free of error. Furthermore, there is a risk of medical record error and patients with the same names getting their data mixed up, which could lead to medical errors. This may potentially result in extensive medical malpractice claims.

How can health systems and providers mitigate these issues?

First and foremost, healthcare professionals must obtain a patient’s informed consent, similar to all other uses and procedures. They should disclose the nature of the technology and update the information as the technology changes. Providers should explain how the technology works and to what degree it will be or was relied upon in the decision-making process. If used extensively, AI can be considered a member of the medical team. Patients have the right to refuse the use of such technologies, similar to their right to refuse care from a specific doctor. Providers must also disclose how the patient’s health information is used by AI for research and treatment of other patients.

If AI is used to the extent of a medical professional, protocols must be implemented in health systems, including standardizing how much of the technology should be relied upon. Especially in its preliminary stages, AI diagnoses and treatment plans should be reviewed by human professionals to ensure accuracy. Additionally, there should be a compliance team instated in hospitals and health systems to ensure that the technology complies with relevant laws and regulations. Although AI is on the rise, it must still be closely monitored and used merely to assist humans, but not to replace them.