The Expected Medical Liability as a result of the Health Sector’s Interaction with Artificial Intelligence – A Foresight-led, Analytical, and Comparative Study
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Oct 3, 2025
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This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
Fahad Ahmad Almasoud
https://orcid.org/0009-0001-0866-8289
https://orcid.org/0009-0001-0866-8289
Abstract
The research focuses on medical liability in the context of AI. Considering that AI is a game-changer, it is a system that produces accurate outputs that may surpass doctors’ abilities. However, this technology is not risk-free. This puts doctors and hospitals in a complex situation regarding liability that arises from their interactions with AI. Therefore, it was necessary for the research to review medical legislation that preserves its traditional character in regulating medical liability, such as the Kuwaiti and American legislation. As well as to explore proposals that regulate AI and liability for the damage that results from the use of AI, such as the AI Act proposal and the AI liability directive proposal, which were both issued by the EU Commission.The research aims to highlight the deficiencies in the aforementioned legislation and proposals, and provide suitable rules regarding medical liability and AI.
This research adopts foresight, analytical, and comparative approaches and has reached several results, the most important of which is that under current Kuwaiti and American legislations, doctors must apply the traditional standard of care, which does not include AI, to shield themselves from liability. The research also reached several recommendations, the most important of which is that physicians must have two standards of care in the EU, Kuwaiti, and American legislation. The first is the medical standard that obligates the use of AI, and the second is the AI user standard.
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Keywords
Standard of CareArtificial IntelligenceUserVicarious LiabilityDirect liabilityAI
References
I. Books:
Abdul Reda AR and Alnakkas J, The concise in the General Theory of Obligations: The First Book Sources of Obligation and Proof (4th ed., House of Books Institution, Kuwait, 2014-2015).
Abu Al-layl IA, Civil Liability and Unjust Enrichment: A Study of the Non-Voluntary Sources of Obligation According to the Kuwaiti Civil Law (2nd ed., House of Books, Kuwait, 1998).
Bohr A and Memarzadeh K (eds), ‘The Rise of Artificial Intelligence in Health Care’ Artificial Intelligence in Healthcare (Academic Press, 2020).
II. Articles:
Benneh GB, ‘AI and Medical Negligence’(2024) 1 Africa Journal of Regulatory Affairs.
Dhaouadi M, ‘An Exploration into the Nature of the Making of Human and Artificial Intelligence and the Qur’anic Persepective’ (1992) 9 American Journal of Islamic Social Sciences.
Dickinson J, ‘Direct Hospital Liability As A Legal Path to Improve Safety?’ (2024) 27 Journal of Health Care and Policy 279.
Elloumi A, ‘Justice in a Time of Health Crisis – A Comparative Study’ (2023) 12 International Review of Law.
Eldakak A and others, ‘Civil Liability for the Actions of Autonomus AI in Healthcare: An Invitation to Further Contemplation’ (2024) 11(1) Humanities and Social Sciences Communications.
Ghanam MG, ‘Civil Financial Penalties towards the Penetration of the Idea of Punishment in Civil Law’ (2022) 12(80) The Journal of Economic and Legal Research 3.
Giuffrida I and Treece T, ‘Keeping AI Under Observation: Anticipated Impacts on Physicians’ Standard of Care’ (2020) 22 Tulane Journal of Technology & Intellectual Property 111.
Griffin F, ‘Artificial Intelligence and Liability in Health Care’ (2021) 31 Health Matrix: The Journal of Law-Medicine 65.
Harned Z, Lungren M P and Rajpurkar P, ‘Machine Vision, Medical AI, and Malpractice’ [2019] Harvard Journal of Law & Technology Digest 2.
Husgen J, ‘Product Liability Suits Involving Drug or Device Manufactures and Physicians: The Learned Intermediary Doctrine and the Physician’s Duty to Warn’ (2014) 111 The Journal of Missouri State Medical Association 478.
Hodge SD Jr, ‘The Medical and Legal Implications of Artificial Intelligence in Healthcare - An Area of Unsettled Law’ (2022) XXVIII Richmond journal of law & technology 405.
Maliha G and others, ‘Artificial Intelligence and Liability in Medicine: Balancing Safety and Innovation’ (2021) 99 The Milbank Quarterly 629.
Matsuzaki T, ‘Ethical Issues of Artificial Intelligence in Medicine’ (2018) 55 California Western Law Review 255.
Mirnezami R and Ahmed A, ‘Surgery 3.0, Artificial Intelligence and the Next-Generation Surgeon’ (2018) 105 British Journal of Surgery 463.
Nagy M and Sisk B, ‘How Will Artificial Intelligence Affect Patient-Clinician Relationship?’ (2020) 22 American Medical Association journal of ethics 395.
Neyers J W, ‘A Theory of Vicarious Liability’ (2005) 43 Alberta Law Review 287.
Price WN II, Gerke S, and Cohen IG, ‘Potential Liability for Physicians Using Artificial Intelligence’ (2019) 322 Journal of the American Medical Association 1765.
–––. ‘How Much Can Potential Jurors Tell Us About Liability for Medical Artificial Intelligence?’ (2021) 62 Journal of Nuclear Medicine 15.
–––. ‘Liability for Use of Artificial Intelligence in Medicine’ [2022] Law & Economics Working Papers 1.
Quest D and others. ‘Demystifying AI in Healthcare: Historical Perspectives and Current Considerations’ (2021) 8 Physician Leadership Journal 59.
See B, ‘Paging Doctor Robot: Medical Artificial Intelligence, Tort Liability, and Why Personhood May Be the Answer’ (2021) 87 Brooklyn Law Review 417.
Shumway, Hayes HJ, ‘Medical Malpractice Liability in Large Language Model Artificial Intelligence: Legal Review and Policy Recommendation’ (2024) 124 Journal of Osteopathic Medicine.
Schweikart SJ, ‘Who Will Be Liable for Medical Malpractice in the Future? How the Use of Artificial Intelligence in Medicine Will Shape Medical Tort Law’ (2020) 22(2) The Minnesota Journal of Law, Science & Technology 1.
Sullivan HR and Schweikart SJ, ‘Are Current Tort Liability Doctrines Adequate for Addressing Injury Caused by AI?’ (2019) 21 American Medical Association Journal of Ethics 160.
III. Legislation
Decree-Law no 67 of 1980 Promulgating Civil Law < https://2h.ae/vGrB> accessed 21 September 21, 2024.
Law no 70/2020 on the Practice of the Medical and Paramedical Professions, the Rights of the Patient and Health Facilities < https://www.amr.gov.kw/ar/law70-2020.php> accessed 21 September 21, 2024.
IV. Caselaw
Kuwait court of cassation judgment, session 6/11/2022, challenge no 498/2016 civil accessed 21 September 2024.
V. Proposals:
Commission, ‘Proposal for a Directive of the European Parliament and of the Council on Adapting Non-Contractual Civil Liability Rules to Artificial Intelligence (AI Liability Directive)’ COM(2022) 496 final.
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence and Amending Certain Union Legislative Acts (Artificial Intelligence Act)’ COM(2021) 206 final.
VI. Websites:
Gerke S, ‘Legal Issues of Artificial Intelligence in Healthcare in the U.S’ (Oxford Law Faculty, 28 May 2021) accessed 6 July 2024.
Jamjoom AAB, Jamjoom AMA and Marcus HJ, ‘Exploring Public Opinion About Liability and Responsibility in Surgical Robotics with the Irobotsurgeon Survey’ (2020) 2 Nature Machine Intelligence accessed 5 July 2024.
McCarthy J, ‘What is Artificial Intelligence?’ (Stanford, 12 November 2007) accessed 8 July 2024.
Papakonstantinou V and Hert P, ‘Refusing to Award Legal Personality to AI: Why the European Parliament got it Wrong’ (AI-Regulation, 26 November 2020) accessed 9 July 2024.
‘Standard of Care’ (The Climate Change and Public Health Law Site) accessed 7 July 2024.
‘Tort Law: The Rules of Medical Malpractice’ (Lawshelf, 21 October 2020) accessed 6 July 2024.
Villaronga F and others, ‘A Human in the Loop in Surgery Automation’ (2021) 3 Nature Machine Intelligence accessed 5 July 2024.
‘What Do You Need to Know About the Standard of Care?’ (Miller Wagner, 10 April 2020)
‘What is Machine Learning’ (IBM) accessed 4 July 2024.
Abdul Reda AR and Alnakkas J, The concise in the General Theory of Obligations: The First Book Sources of Obligation and Proof (4th ed., House of Books Institution, Kuwait, 2014-2015).
Abu Al-layl IA, Civil Liability and Unjust Enrichment: A Study of the Non-Voluntary Sources of Obligation According to the Kuwaiti Civil Law (2nd ed., House of Books, Kuwait, 1998).
Bohr A and Memarzadeh K (eds), ‘The Rise of Artificial Intelligence in Health Care’ Artificial Intelligence in Healthcare (Academic Press, 2020).
II. Articles:
Benneh GB, ‘AI and Medical Negligence’(2024) 1 Africa Journal of Regulatory Affairs.
Dhaouadi M, ‘An Exploration into the Nature of the Making of Human and Artificial Intelligence and the Qur’anic Persepective’ (1992) 9 American Journal of Islamic Social Sciences.
Dickinson J, ‘Direct Hospital Liability As A Legal Path to Improve Safety?’ (2024) 27 Journal of Health Care and Policy 279.
Elloumi A, ‘Justice in a Time of Health Crisis – A Comparative Study’ (2023) 12 International Review of Law.
Eldakak A and others, ‘Civil Liability for the Actions of Autonomus AI in Healthcare: An Invitation to Further Contemplation’ (2024) 11(1) Humanities and Social Sciences Communications.
Ghanam MG, ‘Civil Financial Penalties towards the Penetration of the Idea of Punishment in Civil Law’ (2022) 12(80) The Journal of Economic and Legal Research 3.
Giuffrida I and Treece T, ‘Keeping AI Under Observation: Anticipated Impacts on Physicians’ Standard of Care’ (2020) 22 Tulane Journal of Technology & Intellectual Property 111.
Griffin F, ‘Artificial Intelligence and Liability in Health Care’ (2021) 31 Health Matrix: The Journal of Law-Medicine 65.
Harned Z, Lungren M P and Rajpurkar P, ‘Machine Vision, Medical AI, and Malpractice’ [2019] Harvard Journal of Law & Technology Digest 2.
Husgen J, ‘Product Liability Suits Involving Drug or Device Manufactures and Physicians: The Learned Intermediary Doctrine and the Physician’s Duty to Warn’ (2014) 111 The Journal of Missouri State Medical Association 478.
Hodge SD Jr, ‘The Medical and Legal Implications of Artificial Intelligence in Healthcare - An Area of Unsettled Law’ (2022) XXVIII Richmond journal of law & technology 405.
Maliha G and others, ‘Artificial Intelligence and Liability in Medicine: Balancing Safety and Innovation’ (2021) 99 The Milbank Quarterly 629.
Matsuzaki T, ‘Ethical Issues of Artificial Intelligence in Medicine’ (2018) 55 California Western Law Review 255.
Mirnezami R and Ahmed A, ‘Surgery 3.0, Artificial Intelligence and the Next-Generation Surgeon’ (2018) 105 British Journal of Surgery 463.
Nagy M and Sisk B, ‘How Will Artificial Intelligence Affect Patient-Clinician Relationship?’ (2020) 22 American Medical Association journal of ethics 395.
Neyers J W, ‘A Theory of Vicarious Liability’ (2005) 43 Alberta Law Review 287.
Price WN II, Gerke S, and Cohen IG, ‘Potential Liability for Physicians Using Artificial Intelligence’ (2019) 322 Journal of the American Medical Association 1765.
–––. ‘How Much Can Potential Jurors Tell Us About Liability for Medical Artificial Intelligence?’ (2021) 62 Journal of Nuclear Medicine 15.
–––. ‘Liability for Use of Artificial Intelligence in Medicine’ [2022] Law & Economics Working Papers 1.
Quest D and others. ‘Demystifying AI in Healthcare: Historical Perspectives and Current Considerations’ (2021) 8 Physician Leadership Journal 59.
See B, ‘Paging Doctor Robot: Medical Artificial Intelligence, Tort Liability, and Why Personhood May Be the Answer’ (2021) 87 Brooklyn Law Review 417.
Shumway, Hayes HJ, ‘Medical Malpractice Liability in Large Language Model Artificial Intelligence: Legal Review and Policy Recommendation’ (2024) 124 Journal of Osteopathic Medicine.
Schweikart SJ, ‘Who Will Be Liable for Medical Malpractice in the Future? How the Use of Artificial Intelligence in Medicine Will Shape Medical Tort Law’ (2020) 22(2) The Minnesota Journal of Law, Science & Technology 1.
Sullivan HR and Schweikart SJ, ‘Are Current Tort Liability Doctrines Adequate for Addressing Injury Caused by AI?’ (2019) 21 American Medical Association Journal of Ethics 160.
III. Legislation
Decree-Law no 67 of 1980 Promulgating Civil Law < https://2h.ae/vGrB> accessed 21 September 21, 2024.
Law no 70/2020 on the Practice of the Medical and Paramedical Professions, the Rights of the Patient and Health Facilities < https://www.amr.gov.kw/ar/law70-2020.php> accessed 21 September 21, 2024.
IV. Caselaw
Kuwait court of cassation judgment, session 6/11/2022, challenge no 498/2016 civil
V. Proposals:
Commission, ‘Proposal for a Directive of the European Parliament and of the Council on Adapting Non-Contractual Civil Liability Rules to Artificial Intelligence (AI Liability Directive)’ COM(2022) 496 final.
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence and Amending Certain Union Legislative Acts (Artificial Intelligence Act)’ COM(2021) 206 final.
VI. Websites:
Gerke S, ‘Legal Issues of Artificial Intelligence in Healthcare in the U.S’ (Oxford Law Faculty, 28 May 2021)
Jamjoom AAB, Jamjoom AMA and Marcus HJ, ‘Exploring Public Opinion About Liability and Responsibility in Surgical Robotics with the Irobotsurgeon Survey’ (2020) 2 Nature Machine Intelligence
McCarthy J, ‘What is Artificial Intelligence?’ (Stanford, 12 November 2007)
Papakonstantinou V and Hert P, ‘Refusing to Award Legal Personality to AI: Why the European Parliament got it Wrong’ (AI-Regulation, 26 November 2020)
‘Standard of Care’ (The Climate Change and Public Health Law Site)
‘Tort Law: The Rules of Medical Malpractice’ (Lawshelf, 21 October 2020)
Villaronga F and others, ‘A Human in the Loop in Surgery Automation’ (2021) 3 Nature Machine Intelligence
‘What Do You Need to Know About the Standard of Care?’ (Miller Wagner, 10 April 2020)
‘What is Machine Learning’ (IBM)
How to Cite
Almasoud , F. A. . (2025). The Expected Medical Liability as a result of the Health Sector’s Interaction with Artificial Intelligence – A Foresight-led, Analytical, and Comparative Study. International Review of Law, 14(2). https://doi.org/10.29117/irl.2025.0336
Section
Articles in English