The development and use of digital health tools, particularly AI, continues at pace. The opportunities for equipment manufacturers and software developers appear to be almost limitless. From tele-radiology and dermatology to using AI in diagnosis and treatment planning – all present unique challenges, but have similar medico-legal issues at their core.

First and foremost, it is vital that all involved in what is still an evolving area, understand and manage the associated risks appropriately. Given the relative scarcity of NHS resources, AI is likely to play a greater role in future delivery of care. What about the role of clinicians in the process and their responsibilities?

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Organisations need to have robust governance policies and procedure in place. Due diligence checks on equipment should be made before any new equipment is introduced. With the proliferation of medical devices using data and algorithms, ensuring cast-iron contractual indemnity is in place will be essential. Claims may be made under negligence and a medical malpractice policy will respond but equally product liability claims may be issued thus requiring separate cover.

It goes without saying that staff training and ongoing assessment of competence working with the tool is fundamental to managing risk. Clinical judgment is still likely to have a place in the process: for example patient selection and where the AI involves moving a patient along a protocol, decision-making on progress and whether it is appropriate continue.

Medical Malpractice Insurance Forward View 2024 

This article is part of Capsticks’ Medical Malpractice Insurance Forward View 2024. Read the other articles featured in this publication below:

• Spotlight on four cases
  • The future of secondary victim claims: “a medical crisis is not an accident”
  • Informed consent will remain a patient-centric process, but clinical judgment still has a role to play
  • Will there be more claims based on material contribution following the Court of Appeal decision in Holmes?
  • Dispute resolution: the focus will continue to be on “out of court” methods with litigation as a last resort
• On the horizon
  • Potential for much bigger Schedules of Loss in catastrophic injury cases
  • New streamlined process for lower risk clinical trials may encourage more sponsors to conduct clinical trials in the UK
  • Elite athlete welfare will remain a focus for claims litigation
  • Early preparation will be key to managing the impact of the Personal Injury Discount Rate (PIDR) Review
  • Major change to costs regime for lower value clinical negligence cases

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Aiming to be the firm of choice for medical malpractice insurers, we advise and support on all aspect of claims and inquests.

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan or Chery Blundell.