Who pays when AI gets it wrong? Medical negligence in the age of algorithms

Artificial Intelligence is no longer a futuristic concept in healthcare. From analysing scans to assisting with diagnosis and treatment decisions, AI is becoming an increasingly familiar part of clinical practice. Its potential benefits are significant. Faster diagnoses, improved efficiency and reduced pressure on overstretched healthcare systems are all attractive prospects.

However, as AI becomes more involved in-patient care, an important legal question arises: who is responsible when the technology gets it wrong?

The issue has recently attracted attention following warnings that doctors and NHS bodies could face negligence claims arising from mistakes made by AI tools. Despite the increasing sophistication of these systems, the current legal framework does not allow liability to be simply transferred to an algorithm. In many cases, claimants may still look to the clinician and healthcare provider when things go wrong.

For medical professionals, this creates an uncomfortable dilemma. If a doctor follows an AI recommendation that later proves to be incorrect, could they be criticised for relying too heavily on technology? Equally, if they depart from an AI recommendation and the patient’s condition worsens, could that decision also come under scrutiny? As AI becomes more embedded in healthcare decision making, these questions are likely to arise with increasing frequency.

From a Scottish medical negligence perspective, the courts are likely to focus on the conduct of the clinician rather than the software itself. Existing negligence principles were developed with human decision makers in mind. At present, AI is generally viewed as a tool which supports clinical judgment rather than replacing it. This means that healthcare professionals will still be expected to exercise independent judgment and apply their training and experience when assessing AI-generated recommendations.

The implications extend beyond negligence claims and into the world of professional indemnity insurance. Many existing policy wordings were drafted before the recent surge in AI adoption. As claims emerge, insurers may face difficult questions regarding coverage, causation and the allocation of responsibility between clinicians, healthcare organisations and technology providers. The professional indemnity market has already identified AI as a growing source of risk, with concerns that claim severity and complexity may increase as the technology becomes more widespread.

There is also a broader policy question. If healthcare professionals remain legally responsible for decisions influenced by AI, will this discourage adoption of technologies that could ultimately improve patient outcomes? On the other hand, if liability shifts too far towards software developers, there may be concerns about patient protection and access to compensation. Striking the right balance will be one of the major challenges facing lawyers, insurers and policymakers over the coming years.

Public confidence will be a crucial part of that conversation and the future success of AI in healthcare will depend not only on its accuracy and efficiency, but also on whether patients understand who remains accountable when decisions affect their care. One thing is clear. AI may be transforming healthcare, but the law is still catching up. As its use continues to expand across the NHS and private healthcare sectors, questions of accountability, negligence and indemnity are likely to move from theoretical debate to real-life litigation. For healthcare professionals and insurers alike, this is an area that deserves close attention.

Our Professional Discipline and Clinical Defence team is well placed to offer advice in relation to the defence of claims involving alleged negligence. If there are any issues arising from the article which you would like to discuss, please contact Laura Patriche in the first instance.