In What Furnace Was Thy Brain? Redefining Ethics, Cognition, and Tort Duty For Medical Artificial Intelligence

Christos Strubakos (University of Detroit Mercy), In What Furnace Was Thy Brain? Redefining Ethics, Cognition, and Tort Duty For Medical Artificial Intelligence, 100 U. Detroit Mercy L. Rev. 1 (2022):

Healthcare systems will likely prefer the reliability and speed of an AI system that does not need breaks, does not suffer fatigue, and does not get sick over, human healthcare professionals. This Note explores how AI can be assigned tort liability in a healthcare setting. I argue that tort law, as it stands, is in-sufficient to assign liability when artificial intelligence is used in a med-ical setting and is relied on by a technician or mid-level provider. This piece argues that the legal system will have to redefine duty in medical AI based on an agent-relative moral framework rather than a universal ethical imperative, since a universal ethical imperative implies that the human mind has the capacity for ethical reasoning. In particular, my redefinition will focus on AI’s strengths in doing rapid, accurate data-mining and statistical analysis. Rather than focus on AI’s duty in a traditional tort sense, I argue that the algorithm should be trained to calculate the probability of its decisions resulting in liability. Thus, the AI must be held to a new duty of care in which the patient benefit of using it is weighed against the likelihood of litigation resulting from any of its decisions with that particular patient. In this way, the legal system can, for medical AI, bypass the problem raised by duty, which exists as an innate human moral capacity.