Hot Topic: Artificial Intelligence and Health Care
Artificial intelligence (AI) is the new hot topic everywhere, including in health care, and implementation of AI raises new legal concerns. Here are some of the legal considerations that should be taken into account when using AI:
Data Security: AI systems must handle patient data and information securely, ensuring confidentiality and preventing unauthorized access or breaches under HIPAA.
Medical Records: If AI is used in the creation of medical records, either through listening devices or other mechanisms, health care providers must ensure they are complying with laws regarding recording and consent and think through how medical records are reviewed and whether disclaimers should be included in the records.
Discrimination: AI systems must be designed to avoid discrimination. New rules under Section 1557 of the Affordable Care Act require health care providers to take reasonable steps to mitigate any risks of discrimination in its use of patient care decision tools. HHS provided a recent guidance titled, Ensuring Nondiscrimination Through the Use of Artificial Intelligence (“AI”) and Other Emerging Technologies, that outlines specific ideas for how covered entities can mitigate risks for discrimination in AI.
Liability: Determining who is liable if AI makes an error is complex and a largely unexplored area. Organizations must ensure that AI tools are properly tested and validated, and they should have policies and protocols in place to address the use of AI.
The Health Law team at Woods Fuller will continue to monitor. As always, if you have questions, please reach out to one of our team members.
Written by Courtney S. Chapman, Associate