Civil Liability Arising From Medical Error In Disease Diagnosis In Light Of The Development Of Artificial Intelligence Technologies

Résumé: The use of artificial intelligence technologies in the medical field is rapidly growing, especially in the realm of diagnosis, which is increasingly favored to mitigate the risks of human error. However, the use of these technologies in this context is not immune from error itself. This necessitates the search for civil liability arising from diagnostic errors in the context of the development of artificial intelligence technologies. We find inadequacy in traditional liability rules in this framework, where, concerning personal liability for errors, it is difficult to determine responsibility among a large number of individuals contributing to the existence of these systems. Additionally, the complex composition of these technologies, especially regarding their independent, unpredictable, and uncontrollable actions, absolves them of personal responsibility for actions not initiated by them. Thus, the concept of human error, without which the damage would not have occurred, including liability for the actions of others, whether regarding the supervisor or the consequential actions of their subordinates, becomes inconceivable. Furthermore, the application of liability rules for things and the associated theory of supervision has become untenable, especially with the emergence of advanced generations characterized by autonomy in decision-making and self-learning capabilities without any guidance. This hinders their control and direction, besides the inability to predict their behaviors or decisions. Similarly, concerning product liability, it is challenging to determine the product within the complex structure of these technologies, which require the involvement of multiple individuals in their development. Additionally, the multiplicity of defects and the difficulty of detecting them further complicates matters. Thus, it appears that no existing liability system based on current rules can fully align and adapt to intelligent diagnostic systems. Therefore, it is necessary to consider new concepts and principles of liability to ensure appropriate compensation for victims of harm resulting from diagnostic errors in the context of artificial intelligence. However, in the absence of recognition of the independent legal personality of these systems, one solution advocated by some aspects of French jurisprudence is to establish a completely new system of liability for the actions of artificial intelligence, not only in healthcare but in all fields that may be affected by it. Nonetheless, at present, we believe it is more appropriate and suitable to establish a specialized liability system solely for compensating damages resulting from medical artificial intelligence, particularly those arising from diagnostic errors.

Publié dans la revue: مجلة القانون العام الجزائري والمقارن