3 legal concerns for providers using AI to refill prescriptions—or to do anything similar anytime soon
Utah made waves last month when the state announced it would let an AI chatbot autonomously order drugs for patients.
Even though the program is a test run limited to refills, and even then with certain conditions and restrictions, the move struck some observers as something of a high-stakes gamble.
One who said so also noted that drug ordering is “one of healthcare’s most sensitive tasks.”
With the program now six weeks into its debut performance, attorneys at a major law firm are analyzing its potential legal exposures in light of its upsides for patients and providers alike.
First among the benefits for providers, Sheppard Mullin experts point out in a Feb. 13 blogpost, is the chance to streamline routine clinical workflows.
To whatever extent bot refill orders fulfill that promise, the technology tryout stands to “enhance access and reduce administrative costs where clinical risk is low and compliance safeguards are robust,” write Sheppard partner Carolyn Metnick, JD, and colleagues.
And the primary downside? The ever-pressing need for “careful legal analysis of privacy protections, regulatory compliance, federal-state policy tensions and risk management strategies for healthcare providers operating at the intersection of clinical care and emerging AI technologies.”
Metnick and co-authors name three crucial legal angles to watch for as Utah and industry partner Doctronic proceed apace with their program.
The attorneys’ free advice is generalizable to other uses of patient-facing healthcare AI at this “Utah Rx juncture” in its evolution.
- Adherence to privacy and data protection requirements remains paramount when integrating AI into clinical processes. Providers need to conduct rigorous risk assessments, patient consent protocols and ongoing audits to ensure HIPAA compliance and data security, Metnick and colleagues offer.
- The evolving federal AI policy environment may introduce legal uncertainty. The ambiguous regulatory conditions make it essential that providers “monitor developments in national AI standards, preemption challenges and potential changes to state regulatory authority over AI-enabled clinical decision-making,” they note.
- Liability and malpractice frameworks for AI participation in care decisions are not yet fully settled. To this familiar concern the Sheppard attorneys add that the Utah pilot’s contractual malpractice coverage for AI decisions “may influence how future regulators and courts evaluate responsibility.” Regardless of where that probably slow process may lead, they add, providers “should evaluate professional liability exposure in the context of shared accountability between AI systems and human clinicians.”
Dave P. has worked in journalism, marketing and public relations for more than 30 years, frequently concentrating on hospitals, healthcare technology and Catholic communications. He has also specialized in fundraising communications, ghostwriting for CEOs of local, national and global charities, nonprofits and foundations.