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2023 U. Ill. J.L. Tech. & Pol'y 1 (2023)

handle is hein.journals/jltp2023 and id is 1 raw text is: MALPRACTICE BY THE AUTONOMOUS Al PHYSICIAN Mindy Nunez Duffourct Abstract AI is currently capable of making autonomous medical decisions, like diagnosis and prognosis, without the input of humans. Liability for this practice of medicine by an Autonomous AI Physician currently falls in a tort law gap when it cannot be sufficiently connected to humans involved with the AI because neither human-centric nor product-centric causes of action provide a mechanism for recovery. To fill this liability gap, this Article proposes a framework that governs liability under existing tort law by focusing on control of the AI's injury-causing output to assign liability to creators, organizations, individual providers, and the Autonomous AI Physician with limited legal personhood. Other scholars have suggested bridging this gap by either assigning all tort liability to humans or circumventing tort law altogether. These approaches either subvert tort law's primary goals, require significant structural change, or offer only a piecemeal solution to the problem. The control framework laid out in this Article provides a functional and comprehensive solution for governing injuries caused by the Autonomous AI Physician that both balances the benefits and risks of technological innovation in healthcare and advances tort law 's compensation and deterrence goals. f Acting Assistant Professor of Lawyering & Consultant for MS Health Law & Strategy Degree Program, New York University Law School; Postdoctoral Fellow for Project CLASSICA: Validating Al in classifying cancer in real-time surgery, Penn State Dickinson Law. Mindy Duffourc reports grant funding from the European Union (Grant Agreement no. 101057321). I'm grateful to Catherine Sharkey for moderating a discussion of an outline of this paper and providing feedback that helped me wrangle an idea into an article. Many more thanks to the following colleagues at NYU, who took time to read and comment on this article at some point (or for some, at all points) during its long journey: Anna Arons, Edith Beerdsen, Tyler Rose Clemons, Haiyun Damon-Feng, Dorien Ediger-Seto, Madeleine Gyory, Brandon Johnson, Alba Morales, Britta Redwood, Faraz Sanei, Jason Schultz, Naveen Thomas, and Katherine Wood. I'm also incredibly grateful to Sara Gerke, who not only immediately answered my cold call (email) but provided several rounds of detailed feedback on this article. I'm also incredibly grateful to the organizers and participants at this year's Seton Hall Health Law Works-in-Progress Retreat, and especially to my panel discussants, Ryan Abbott, Mason Marks, and Charlotte Tschider for throwing some functional and insightful wrenches into my near-final manuscript, which made this final draft better than the last final draft. And last but not least, I'm grateful to my anonymous peer-reviewers and the entire team at Illinois JLTP, especially Kevin Cassato and Molly Lindsey, for their work in getting this article to publication. 1

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