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Cross-Examining Watson: How to Sue a Robot

An Appellate Court in NJ recently revisited the affidavit of merit statute, yet again, but this time with a twist. One question before the Court in Skounakis v. Sotillo was whether a physician was qualified to give an expert opinion on a weight-loss treatment suggested by a computer program.

The defense argued essentially that a physician expert could not testify against a computer, unless he was also a computer software expert. The lower court in the case agreed, setting up what could have been a fascinating issue about bringing lawsuits against machines in the age of artificial intelligence (“AI”). The Appellate Court managed to reconcile the issue though - at least for now.

The Appellate court reversed the lower court’s bar of testimony from a physician without computer software expertise. In doing so, it concluded that a physician does not need to know the technical programming aspects behind an alleged deviation from accepted medical standards, only whether the treatment itself was appropriate.

In Skounakis, the plaintiff was suing over a weight loss program that combined taking phendimetrazine with Cytomel, allegedly causing death. Though a “robot” may have recommended the weight-loss program, a physician was nevertheless qualified to testify against the treatment.

AI is in its infancy in healthcare, as is the legal framework related to algorithms, machine learning and predictive analytics related to treatment. As practices become more reliant on AI for diagnosis and treatment of patients, the laws regulating and enforcing same are likely be developed and amended quickly and often.

For more information, please contact Brian Kern | bkern@tororisk.com.