THE PRICE OF AUTONOMY: LIABILITY STANDARDS FOR COMPLEMENTARY AND SUBSTITUTIVE MEDICAL ROBOTICS AND ARTIFICIAL INTELLIGENCE

Abstract

When AI or robotics assist a professional, they are tools. In medicine, the doctrine of “competent human intervention” has shifted liability away from those who make devices and toward the professionals who use them. However, the professional in such scenarios should not bear the entire burden of responsibility. Tools can be defective, and vendors of defective, complementary AI and robotics should be held responsible for negligence. The burden of proof will still be on the plaintiff to demonstrate that not only a skilled medical professional, but also the maker of the tools used by such a professional, should be held liable for a preventable adverse outcome. When AI and robotics replace, rather than merely assist, a skilled medical professional, the burden should shift. The vendor of such computational systems needs to take on responsibility for errors and accidents. In the medical field, there has long been a standard of competent professional supervision of the deployment of advanced technology. When substitutive automation short-circuits that review, it is both defective and unreasonably dangerous. Nevertheless, at the damages phase of litigation, the vendor of the substitutive AI should be entitled to explain how damages should be mitigated based on its AI’s performance relative to the extant human or human-machine based standard of care. Such responsibility for explanation will serve an important information-forcing function in areas where public understanding is often limited by trade secrecy. As law and political economy methods demonstrate, law cannot be neutral with respect to markets for new technology. It constructs these markets, making certain futures more or less likely. Distinguishing between technology that substitutes for human expertise and that which complements professionals is fundamental not just to labor policy and the political economy of automation, but also to tort law.