The Next Era in Healthcare Transparency and Medical Negligence

While visiting a client at her medical office, I noticed a comical sign that read, “Please do not mistake your Google search with my medical degree.”  The Internet has certainly produced far too many “overnight doctors,” but it has also helped bring more transparency to healthcare delivery.  As deep machine learning is now being introduced into healthcare though, a whole new opacity - demanding considerable legal consideration – may follow.  We may be able to challenge physicians with a Google search, but how can we challenge Google?

Our medical malpractice tort system has long held a treating physician liable for everything from negligent surgery to the failure to relay test results. On the surface, it may appear obvious that a physician should be held accountable for these occurrences.  But what if post-operative complications worsened under the care of hospital nurses, or a clerical worker employed by a third-party misplaced the test result?  Should the “treating physician” still be held accountable?

The number of employed physicians has increased significantly over the past decade.  So too has employers’ reliance on technologies such as electronic health records and prescription writers.  Now technology is being developed to diagnose and treat patients, particularly as the healthcare system moves towards a “population health” model.

To assist in treating large volumes of patients, algorithms are being trained to identify patients who are most “at-risk.”  But what if cultural differences have not been built into the algorithm, or an under-represented genetic background in the data led to the failure to diagnose a serious disease?

Should the “treating physician” still be liable?  Or the corporation that build the algorithm?

Historically, the legal industry has proven agile in addressing emerging legal issues, but this challenge may be more difficult to overcome.

When the government demanded that Apple give it access to a terrorist’s iPhone, Apple fought back.  Will the plaintiff bar be more successful in fighting large corporations than the government, or will it continue to hold physicians liable for misdiagnoses?  Time will tell.

Ultimately, society will need to decide which is more important: Protecting corporations’ intellectual property, or having the legal recourse and the ability to challenge the integrity of their algorithms.

Patients can easily ascertain where their physicians went to school and trained, and what they studied – helping to build trust.  Patients do not have the same access to ascertain how algorithms were designed, who they were designed for, or what data was used to train them.  The legal system should not mistake a Google search for a medical degree.

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

Brian S. Kern, Esq., Founder
Toro Risk Consulting Group, LLC | Bullish on the future of healthcare
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