Technology Innovation Continues to Outpace the Law

AHLA Connections January 2019

Alaap B. Shah, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, authored an article in AHLA Connections, titled “Technology Innovation Continues to Outpace the Law.”

Following is an excerpt (see below to download the full version in PDF format):

The pace of information technology innovation in the health care industry continues to increase, yet the law has had difficulty keeping pace. This often leaves the legal profession struggling to fit a square peg into a round hole. The law likely will face even more challenges in 2019 as interest and spending on health information technology innovation continue to rise. While there are a cornucopia of technological and data science advancements occurring simultaneously, there are a couple to watch closely in the year ahead.

Artificial Intelligence. Artificial Intelligence (AI) is still an emerging field, but rapidly maturing. AI technologies are entering the market and seek to create efficiencies, cut costs, and improve quality and safety. The potential value of AI is promising, but the health care industry will grapple with questions about responsible use of AI. Further, few laws directly address the use or development of AI. As such, the legal profes­sion is left to creatively apply existing laws and regulations to AI paradigms. Analysis of AI will need to return to the touch­stones of ethics and policy to inform the debate. Lawmakers also will struggle to develop standards to govern AI without stifling innovation. Accordingly, lawmakers will likely seek to strike the right balance between regulating development and use from a premarket and postmarket perspective.

A common theme that has and will continue to drive the dialogue relates to ensuring that AI technologies are not devel­oped as “black boxes.” It will be hard to trust what we cannot truly understand. Managing legal risk will require evaluating AI tools based on transparency of algorithms, reliability of outputs, accountability features, and safeguards around privacy, security, and safety. While the law gets sorted out, early adopters of AI technology will be left to allocate risk through contracts with developers, partners, and third parties leveraging AI technology.