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  • 2 - Product Liability Suits for FDA-Regulated AI/ML Software

  • from Part I - AI and Data as Medical Devices
  • Edited by I. Glenn Cohen, Harvard Law School, Massachusetts, Timo Minssen, University of Copenhagen, W. Nicholson Price II, University of Michigan, Ann Arbor, Christopher Robertson, Boston University, Carmel Shachar, Harvard Law School, Massachusetts
  • Book:
    The Future of Medical Device Regulation
    Published online:
    31 March 2022
    Print publication:
    07 April 2022, pp 22-35
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  • Summary

    The 21st Century Cures Act preserved the FDA’s authority to regulate several categories of software that incorporate artificial intelligence/machine learning (AI/ML) techniques. The agency’s draft guidance on Clinical Decision Support Software proposed an approach for regulating CDS software and shed light on the FDA’s approach to genomic software. This chapter explains why the FDA’s proposed approach to regulating software is unlikely to preempt failure-to-warn suits. It then turns to design-defect suits, focusing on adaptive AI/ML software that continues to redesign itself throughout the product lifecycle. How will common defenses work when the state of the art is in the robotic “mind” of an AI/ML algorithm? We also reflect on broader impacts on patients, clinicians, software developers, and healthcare systems and ask whether the FDA is the “right” regulator to address the unresolved ethical and medical practice concerns that surround this software.