The Medical Protection Society (MPS) said the rapidly evolving use of AI in healthcare leaves the NHS and its staff ‘unfairly exposed’ to costly clinical negligence claims. Its report, ‘Closing the AI liability gap’, published this week, highlights how current product liability laws place clinicians who use AI systems—particularly those suggesting diagnoses and treatment plans—at risk of absorbing all legal responsibility if a patient is harmed due to a defective AI system.
The reason is AI systems are not clearly defined as ‘products’, therefore developers, manufacturers and suppliers are likely to be shielded from liability. MPS has urged the government to bring in legislation that clearly classifies AI systems as products.
MPS deputy medical director Dr Sarah Townley said: ‘The Consumer Protection Act 1987 was never designed with AI in mind, meaning AI systems will likely fall outside of its scope.
‘This makes it difficult for patients to bring product liability claims against these parties if harm occurs. The default may therefore be to pursue the end users of the AI through a clinical negligence claim. Specifically, the NHS, where taxpayers would ultimately foot the bill for claims, and clinicians in private practice who indemnify or insure themselves against claims.’
Roger McMillan, head of the healthcare team at Carson McDowell, said: ‘Legislative provisions unambiguously defining AI systems as products would provide much needed clarity for developers, software markets and end-users in relation to the legal risks of AI usage.
‘This is particularly important in the healthcare sector, where it is essential that both clinicians and patients can have confidence that there is a clear route to the equitable division of liability, should anything go wrong when AI is used in a healthcare setting.’
