Civil Responsibility for medical Malpractice Arising from the use of artificial intelligence

Abstract

The healthcare sector is one of the most important fields that has witnessed tremendous developments in benefiting from digital transformation applications, particularly through the use of intelligent robots in surgical procedures or post-medical care, as well as software systems that assist in disease diagnosis and treatment recommendation. It has therefore become necessary to examine the extent to which traditional civil liability rules are capable of accommodating the transformations imposed by the use of artificial intelligence in the medical field. This is done through analyzing the conditions for establishing liability, identifying its parties, and highlighting the main challenges raised at both the practical and judicial levels. Legal scholarship has given considerable attention to the issue of civil liability, especially concerning professionals in their relationships with third parties. The essence of this liability lies in the obligation to compensate damage caused to others as a result of the fault of these professionals whenever the elements of liability are met, namely fault, damage, and causation. This traditional concept of liability has been sufficient to resolve medical liability issues, based on the physician’s personal act, negligence, or lack of prudence, whenever it results in misdiagnosis, inappropriate treatment, or surgical intervention without compliance with technical standards. However, digital transformation and technological development in the world, particularly in the healthcare sector, have led to the use of artificial intelligence as a technical tool that facilitates medical decision-making. It processes data and responds rapidly and continuously in order to achieve better treatment outcomes. Nevertheless, despite the multiple advantages of adopting artificial intelligence in the medical field, the complexity and intertwinement of relationships make the allocation of liability in cases of patient harm marked by ambiguity and uncertainty, in the absence of clear legal legislation that keeps pace with contemporary developments.Problematic: To what extent are the general rules of civil liability adequate for determining liability for medical errors resulting from the use of artificial intelligence?Importance and Objectives of the Study: The importance of this topic lies in its contemporary nature on the one hand, and in shedding light on the legal nature of artificial intelligence systems on the other. It also addresses the elements of civil liability arising from the use of artificial intelligence in the medical field, in an attempt to create a balance between technological development and legal safeguards for the protection of patients’ rights.Methodology: To address this topic and answer its main problematic, the study adopts an inductive approach based on reading and analyzing legal texts, with a particular focus on Moroccan law. It also relies on a descriptive-analytical method by describing and analyzing different hypotheses regarding the use of artificial intelligence technologies and applications in the medical field and their impact on the distribution of liability between companies producing AI systems, physicians using these technologies, and hospitals providing such technologies..