Reference no: EM133389915

AI (artificial intelligence) is upon us! Computers will take over the world! Well, not really. At least not yet. But Bill Fence has developed a new healthcare AI that he claims will allow computer-controlled machines to perform complex surgeries flawlessly. Although human physicians will need to oversee the work of the AI "docs", Bill believes that this technology will limit physicians' roles in the future and make healthcare safer and more efficient.

Steve Employment is the CEO of Orange Hospital (OH). Bill meets with Steve to request that Steve hold a clinical trial of the AI-directed surgical machines at OH. In animal trials, the technology has demonstrated incredible effectiveness and capabilities. Eager to offer a new service to the community to gain a competitive edge over other local hospitals, Steve quickly agrees, and Bill transfers the computers and surgical machines to OH to begin the trial.

Due to concerns about patients' discomfort with the idea of a computer operating on them, Bill and Steve decide to only use the AI for surgeries where the patient is under general anesthesia (where the patient is not conscious). OH requires all patients to sign a general consent form upon admission, and it buries a short disclaimer in the consent form to address the potential use of AI surgeries: "Your physician might be assisted in your medical procedure by technology developed by Bill Fence." This is the only information about the use of AI disclosed to patients. The patients who are "enrolled" in the clinical trial (they do not sign a separate consent form for participation in research) are anesthetized prior to entering the surgical suite and never see the AI machines.

Susan is to undergo surgery to remove a tumor in her abdomen. Although she reads the general consent form provided by the hospital, she isn't aware of the extent that the AI machines will be used: to perform the surgery while her surgeon merely observes. Her surgeon, Dr. Bored, has been instructed not to inform Susan or any other surgical patient about the use of AI for their surgery. Even though Dr. Bored is not an employee of OH, she agrees to the request because she likes the idea of being able to relax during surgery.

During the surgery, Dr. Bored is present to observe the AI and intervene if there are any problems. Bill Fence is present to address any issues in the programming of the AI as it works. During the surgery and while Susan is unconscious, Bill starts flipping a scalpel in the air to entertain himself. Unfortunately, this starts to become less entertaining so Bill decides to "up the ante" by aiming at Susan's leg but intending to only hit it with the handle end of the scalpel. Unfortunately, although the general accuracy of Bill's throw was excellent, the scalpel lands blade-down in Susan's leg, causing her to bleed. Dr. Bored sees this, quickly removes the scalpel, and closes the wound with stiches.

After this excitement, Dr. Bored becomes...bored. She starts doing jumping jacks to pass the time and get her blood flowing, but accidently kicks the stand that the AI surgical machine is on. This causes the machine to jolt and perforate Susan's intestine (which is adjacent to the surgical site). Dr. Bored immediately shuts down the machine, repairs the perforation, and completes the surgery herself. Once the surgery is complete, Dr. Bored turns the AI machine back on. Unfortunately, the machine's code (programming) was improperly written by Bill to prevent the cancellation of a surgical procedure. Once fully powered on, the AI restarted the surgery-reopening the original incision and making a mess of the work completed by Dr. Bored. This time, Dr. Bored unplugged the machine but she still had to repair the damage done by the machine.

When Susan woke up, following the surgery, Dr. Bored confessed to using the AI and the accompanying problems it caused. The intestinal perforation necessitates a second surgery 2 weeks later, and Susan continues to have pain and discomfort that she believes is caused by the repairs done by Dr. Bored when she tried to repair the AI's second surgical attempt after she had already completed the initial tumor removal.

When Susan saw the stiches in her leg, she confronted Steve. Steve fell to the floor, groveling. He tells Susan that he should never have let Bill try his AI surgical machine on her and that Bill never should have been throwing the scalpel around the operating room.

Susan decides to never go to OH or seek care from Dr. Bored ever again. She's also considering filing a lawsuit against OH, Bill Fence, and Dr. Bored.

Answer ALL of the following questions:

For EACH of the three defendants (OH, Bill Fence, Dr. Bored), what is the potential tort cause of action that Susan might claim?

For EACH of the three defendants, what are the elements/legal requirements that Susan most prove for the tort(s) identified in question 1?

For EACH of the three defendants, apply these elements/legal requirements to the facts (ANALYZE) and conclude whether the defendant is likely to be found liable or not.