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From: novick@uo-vax1.UUCP (novick)
Newsgroups: net.ai
Subject: Re: Liability
Message-ID: <58300003@uo-vax1.UUCP>
Date: Fri, 12-Oct-84 16:17:00 EDT
Article-I.D.: uo-vax1.58300003
Posted: Fri Oct 12 16:17:00 1984
Date-Received: Sun, 14-Oct-84 08:15:47 EDT
References: <12818@sri-arpa.UUCP>
Organization: Univ of Oregon - Eugene, OR
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Nf-ID: #R:sri-arpa:-1281800:uo-vax1:58300003:000:5021
Nf-From: uo-vax1!novick    Oct 12 12:17:00 1984

[here's the response that was *supposed* to have gone out--DGN]

>Just as damning as using an incompetent [software] advisor is
>failing to use a competent one.  If a doctor's error makes you a
>cripple for life, and if he had available (and perhaps even used)
>an expert system counceling a better course of treatment, is he
>not guilty of malpractice?  Does the doctor incur a different
>liability than if he had used/not used a human consultant?

Under the traditional tort law of medical negligence, the appropriate
standard would be whether the unfortunate MD provided the level of care
generally provided by other physicians under similar circumstances.  Based
on my limited knowledge of medicine, I would guess that this test would now
still be resolved in favor of the erring doctor, since use of expert systems
remains limited.  On the other hand, an insightful attorney might be able to 
show if the expert system embodied the generally-available or exercised
expertise in the field, and that the doctor did not have such expertise, then
the doctor would be considered negligent--not because he failed to use
the system but because his own level of knowledge was insufficient.  However,
the question of negligence is almost always decided by the jury as a question
of fact, and a plaintiff's verdict would not surprise me.

  Additionally, there are some areas of social conduct involving public
safety in which an entire industry's standards might held too low.  The most
famous example of this was a case in which the owner of a tugboat was held
liable for failure to have a radio on board at a time when virtually no
tugboats had radios.  A similar analysis might then apply to doctors and 
expert systems. 

>The human consultant would normally bear part of the liability.
>Since you can't sue an expert system, do you sue the company
>that sold it?  The programmer?  The theoretician who developed
>the algorithm?  I'm sure there are abundant legal precedents for
>all of the above.

If one were to sue the sellers of an expert system, a number of problems might
arise.  First, the status of software as a "good" under the Uniform Commercial
Code remains unclear, as far as I know.  Second, either the injured plaintiff
or the physician (on a third-party complaint) might sue the providers of the
software on a strict products liability theory; however, the plaintiffs would
probably have to show as a matter of law that the patient was a "user or
consumer" of the software.  There may be analogous law regarding, say, faulty
X-ray equipment.  In any event, the logical defendants would be the
consultant and the company, on the pragmatic grounds that they would be
most able to pay.  The programmer or the theoretician might also be liable,
either in strict liablity or in negligence, but only if their conduct either
caused the system to be unreasonably dangerous or fell short of the conduct
expected of an ordinary programmer or theoretician.

>  Systems for monitoring and interpreting
>electrocardiograms are commonly adjusted at the "factory" to
>match the diagnostic style of the purchasing physician.  Suppose
>that the doctor requests that this be done, or even does it
>himself.  Suppose further that he is incompetent at this type
>of diagnosis (after all, he's buying a system to do it for him),
>and that customization to match his preferences can be shown to
>degrade the performance of the software.  Is he liable for operating
>the system at less than full capability?  I assume so.  Is the
>manufacturer liable for making the adjustment, or for providing
>him the means of doing it himself?  I would assume that also.
>What are the relative liabilities for all parties?

Generally, doctors are considered "learned intermediaries" who are expected
to know the field in which they practice.  This has the effect of largely
insulating suppliers of prescription drugs from liability to patients,
where the physician was aware of the dangers of the product.  A
similar analysis might apply in this case.  On the other hand, if the tuning
feature were found to be a design defect which made the system unreasonably
dangerous, or (more likely) if the seller failed to warn the physician of the
dangers of tuning the system and this failure to warn made the system
unreasonably dangerous, then the seller would be liable, assuming that the
injured plaintiff proved that his or her injuries resulted from the design
defect or the failure to warn the doctor.

The relative liablities are too complex to discuss here, because they hinge
largely on state-specific laws relating to comparative fault and strict
products liability.  In general though, one would expect certainly the
seller and probably the doctor to be liable.  As between the two, the doctor
might be able to get contribution or indemnity from the seller if the system
were found defective.

--David Novick
  University of Oregon School of Law
  University of Oregon Dept. of Computer and Information Science
  uoregon!uo-vax1!novick