Proposal toward “no-fault” civil liability regulation following Artificial Intelligence evolution in health-care

Civil liability, in its traditional paradigm based on “deterrence”, may be understood as indirect market regulation, since the risk to incur in liability for damages provide an incentive to invest in safety. Such an approach, however, appears inappropriate, beyond a certain limit, in medical liability since its continuous increases are nowadays incentivating more “defensive medicine” than further increases in safety. This disincentive doctors from relying on guidelines and standards which, at the aggregate level, are the safest path of action when compared with all alternatives. Such a malfunction appears even more serious with respect to the use of artificial intelligence in health-care, which will greatly increase in the next future. In fact, robots and programs may “behave” far independently from instructions initially provided by programmers and constructors. Charging the latter with liability even if the damage derives from a perfectly “correct” functioning of algorithms and robots would maybe not provide any proper “deterrence”, because damages would derive from a situation where there is no “fault” or “lack” in safety to blame or prevent. This could provide a disincentive to AI research, development and use, notwithstanding AI devices already show to be the safest choice when compared with all alternatives based only on human action. Therefore, I propose that the law on redress in health-care, especially when practiced through artificial intelligence devices, should evolve from an issue of civil liability into one of financial management of losses, pursuant to no-fault redress schemes. Of course, such schemes should apply only in cases where there is no evidence that doctors and producers and programmers of AI devices acted in conditions of negligence, imprudence or unskillfulness and their activity appropriately complied with scientifically validated standards. In other cases, traditional civil liability rules would play a sound function of deterrence. As a result, with reference to AI markets, “fault” and “no-fault” systems should coexist as independent and alternative system of redress (a sort of “double track” legislation on redress for damages), in order to take advantage of the benefits brought by each of them, narrowing their flaws by their reciprocal interplay.
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