Who pays when AI goes rogue?

The ideas and innovators shaping health care

Feb 07, 2024 View in browser   By Daniel Payne, Erin Schumaker and Daniel Payne POLICY PUZZLE AI's not foolproof, but whether the software or the people using it are responsible for mistakes isn't clear. | Matic Zorman/Getty Images We don’t know who’s liable when an artificial intelligence system fails, according to a new paper by Stanford researchers in The New England Journal of Medicine. As a result, doctors and hospitals are playing a risky game when implementing the tech. “Courts are going to need to evolve some of their existing rules doctrines to create remedies for plaintiffs against software developers,” Michelle Mello, one of the paper's authors and a health law scholar, told Daniel. Even so: Mello worries that, in the absence of such an evolution in the courts, AI could imperil clinicians who rely too heavily on their software co-pilots — a concern shared by the American Medical Association, the leading doctors’ group — or health systems that implement software without ensuring its safety. AI’s opaque inner workings, which can change as the systems take in new information, make proving its involvement in a particular injury much more difficult under current judicial standards. And the sometimes billions of variables an AI system might use to come to an answer could make it difficult for a plaintiff to find a flaw in the product specific enough to win in court. The authors, in reviewing the limited jurisprudence, say courts seem — at least thus far — “disinclined to create special new rules for AI.” Advice for providers: The authors say doctors and hospitals should consider archiving an AI system’s work if they need to produce it as evidence. They “should also insist on favorable terms governing liability, insurance, and risk management in AI licensing contracts.”   CONGRESS OVERDRIVE: Since day one, POLITICO has been laser-focused on Capitol Hill, serving up the juiciest Congress coverage. Now, we’re upping our game to ensure you’re up to speed and in the know on every tasty morsel and newsy nugget from inside the Capitol Dome, around the clock. Wake up, read Playbook AM, get up to speed at midday with our Playbook PM halftime report, and fuel your nightly conversations with Inside Congress in the evening. Plus, never miss a beat with buzzy, real-time updates throughout the day via our Inside Congress Live feature. Learn more and subscribe here.     WELCOME TO FUTURE PULSE Boston, Mass. | Shawn Zeller/POLITICO This is where we explore the ideas and innovators shaping health care. A California county is the first in the nation to declare loneliness a public health emergency, NBC News reports. Among San Mateo officials' ideas for improving social connection: investing in more walkable neighborhoods and partnering with social media platforms on community meetups.   Share any thoughts, news, tips and feedback with Carmen Paun at cpaun@politico.com, Daniel Payne at dpayne@politico.com, Ruth Reader at rreader@politico.com or Erin Schumaker at eschumaker@politico.com. Send tips securely through SecureDrop, Signal, Telegram or WhatsApp.  WORLD VIEW Mistral CEO Arthur Mensch is concerned about overregulation of AI by the EU. | AP It turns out the agreement European countries reached in December to regulate artificial intelligence might not mean as much for health care as initially thought. How so? Before EU members formalized their Artificial Intelligence Act in a unanimous vote last week, Germany secured a commitment from the European Commission, the bloc’s executive arm, that coming regulations would not apply to the use of AI in medical devices. That’s according to a spokesperson for German Digital and Transport Minister Volker Wissing, the foremost AI Act skeptic within Germany’s coalition government, who spoke with POLITICO’s Gian Volpicelli. Why it matters: Before the concession, Germany and France had threatened to oppose approval of the AI Act, which will ban some AI technology applications, impose strict limits on use cases considered high-risk and rein in the most advanced software models with obligations of transparency and stress-testing. Paris and Berlin had feared the law — the details of which the commission will work out — would hamstring their budding AI champions, such as France’s Mistral and Germany’s Aleph Alpha. Both Mistral and Aleph Alpha aim to compete with the major U.S. players, like OpenAI and Google, and team with health care technology firms to create products. At the time of the December agreement, European device makers said they feared the new law could subject them to two sets of rules, one for AI and another for medical products, and pledged to lobby against it.   DON’T MISS POLITICO’S GOVERNORS SUMMIT: Join POLITICO on Feb. 22 to dive into how Governors are wielding immense power. While Washington remains gridlocked, governors are at the center of landmark decisions in AI and tech, economic development, infrastructure, housing, reproductive health and energy. How are they setting the stage for the future of American politics, policies and priorities? How are they confronting major challenges? Explore these questions and more at the 2024 Governors Summit. REGISTER HERE.     FOLLOW THE MONEY Hospitals have a long wish list they're presenting to Congress. | Spencer Platt/Getty Images The American Hospital Association has signaled its priorities for the remainder of this year, most of which have something in common: the bottom line. With a big government funding package expected at the end of this month, hospitals are lobbying to stop site-neutral proposals from moving forward. Those proposals aim to equalize payment for treatments regardless of where they take place — whether in hospitals or in often less expensive clinics and doctors’ offices. Hospitals argue they provide better care with more safeguards for sicker patients. “We are finding a good level of support,” Stacey Hughes, AHA’s executive vice president for government relations and public policy, told Daniel. The AHA also wants policymakers to: — Build and support the health care workforce by reauthorizing training programs — Maintain healthy Medicare and Medicaid funding, including supplemental Medicare payments to hospitals that serve large numbers of low-income patients — Create a hospital designation that would mean bigger Medicare fees for some facilities in urban environments — Revise or scuttle a Centers for Medicare and Medicaid Services proposal that would, for the first time, set minimum staffing standards in long-term care facilities — Enact a national data privacy law to govern how AI shares and uses data — Make pandemic-era coverage of certain telehealth services permanent.   Follow us on Twitter Carmen Paun @carmenpaun Daniel Payne @_daniel_payne Ruth Reader @RuthReader Erin Schumaker @erinlschumaker   Follow us

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