AI in Patient Care: Managing Malpractice Risk

October 20, 2026 by matray

by Valerie Grove 

Editor’s Note: The following opinion article was contributed by Valerie Grove, a medical malpractice attorney with Joseph Greenwald & Laake. As states increasingly enact laws requiring disclosure of artificial intelligence use in patient care, questions surrounding medical liability remain largely unresolved. Grove examines the emerging legal risks associated with AI-assisted diagnosis and documentation, the responsibilities of physicians using these technologies and the potential implications for medical malpractice litigation. The views expressed are those of the author and do not necessarily reflect those of Medical Liability Monitor. 

In primary care and emergency departments, the use of ambient scribes – artificial intelligence tools that record and transcribe the audio of medical visits – has become standard practice, and other AI diagnostic tools, such as radiology imaging overreads, are emerging for use in the medical field as well. As these tools become more common, they will introduce new risks for physicians when errors occur. At this point, AI has only been at the center of a few medical malpractice cases, so the legal framework around these cases is still evolving – potentially exposing physicians to liability.  

Where Ambient Scribes Create Risk

While ambient scribes are helpful, they have limits. Most obviously, they can’t see or hear the physical exam, so if the physician doesn’t voice their observations, the note will have no record of it. 

Similarly, a patient’s nonverbal cues are not captured or considered by AI scribes. Limping or visible pain will not be noted in the transcript unless the provider adds it while reviewing the note. 

There is also an understated risk embedded in the way these tools are designed to function. AI is a statistical prediction tool, so it doesn’t flag ambiguous audio for uncertainty. Instead, it resolves the ambiguity independently, often inventing data and findings to resolve its uncertainty or question without notifying the provider it did so, potentially resulting in a hallucination that then enters the medical record. 

An additional layer of risk arises once physicians get used to AI. Studies suggest that when physicians become comfortable with these tools, they rely on them more, which leads to more errors. This overreliance without verifying is the leading malpractice risk with the use of scribes today. 

Informed Consent Remains Untested

Several states have enacted laws requiring physicians to disclose the use of AI tools – and paperwork that simply says a hospital “may use AI” is unlikely to withstand a legal challenge as to the sufficiency of informed consent. 

Legally, informed consent is defined as what a reasonable healthcare provider should disclose to a patient regarding a particular risk. Since the use of an AI tool in patient care creates risk, it needs to be properly disclosed. Simply Including a statement in an intake form that AI may be used likely will not be sufficient informed consent since it doesn’t inform the patient about what the tool does, the risks to the patient, its limitations nor that ability for the patient to “opt out” of the use of AI for his or her clinical care. Providers should, at a minimum, communicate with the patient about the use of the tool and the potential risks involved while clarifying to patients that the technology does not replace their own exam, assessment and diagnosis. 

While including this type of disclosure may satisfy the requirements of informed consent, it would, of course, be fact specific, and AI informed consent requirements have not been tested in court. 

A Tool in the Eyes of the Law 

With little case law in this area to date, the law treats AI like any other instrument a physician uses. Any shift in this approach is likely to be narrow and tied to specific facts – for example, proof that no reasonable physician in similar circumstances would have relied on a particular output such as an imaging result that they would have recognized as wrong on review. 

Who Gets Named in a Claim 

When a patient becomes the victim of an AI error, the physician who delivered their care becomes the target of the medical malpractice claim, not the AI software company. Because the patient has no direct contractual relationship with the AI company, any claim against the software company would not likely survive a motion to dismiss. Unlike a product liability case where, for example, a manufacturer of a defective toaster would be held liable because the product was marketed and sold directly to consumers for their use, AI software is used by the physician rather than his or her patients. 

Best Practices for Physicians

The guidance for physicians is clear: Proceed with extreme caution and review every output, every time. An AI diagnostic result is not a replacement for a consultation with a specialist; and that initial AI output still requires an independent review. Physicians must continue to apply their training, experience and judgment and avoid overreliance on artificial intelligence that can introduce errors. 

Physicians should read their professional liability policies and ensure they understand their coverage. Carriers are regularly rewriting terms in response to AI and the changes it’s bringing. Some policies contain clauses that exclude coverage for incidents involving certain AI situations while others require a separate rider for AI coverage. Providers should confirm with their broker or agent that their policies cover AI hallucinations and negligence actions that sound in AI errors.  

The law around AI and malpractice is still developing, but for now, the risk rests with the physician. Review every output, disclose AI use to patients and confirm coverage before a claim forces the question. Errors will happen, but preparation can prevent a manageable incident from becoming a costly one.   

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Valerie Grove is a principal at law firm Joseph Greenwald & Laake, where she focuses her practice on representing injured victims of medical malpractice using her 20 years of experience litigating medical negligence cases. She previously represented providers in malpractice litigation and related health law issues. She can be reached at vgrove@jgllaw.com. 

Iowa Appeals Court Reverses $250,000 Damages Cap in Stillbirth Malpractice Case 

October 20, 2026 by matray

The Iowa Court of Appeals ruled that a trial judge improperly limited the damages recoverable by parents whose baby was stillborn following alleged medical negligence. The appellate court found that a jury should determine whether the case qualifies for exceptions to Iowa’s $250,000 noneconomic damages cap, including death, substantial impairment of bodily function and substantial disfigurement. The court reversed the ruling and remanded the case for further proceedings. 

Case: Anderson v. Posthuma, No. 25-0865, 10/07/2026, published.  

Facts: Miranda Anderson was 34 weeks pregnant on April 13, 2021, when she first showed troubling symptoms with her pregnancy. Anderson saw Dr. Richard Posthuma at Pella Regional Health Center. He diagnosed Anderson with preeclampsia.  

Anderson was in and out of the hospital over the course of the next few days.  

On April 21, 2021, an ultrasound revealed Anderson’s baby no longer had a heartbeat. Anderson underwent emergency cesarean surgery to deliver her stillborn child.  

Procedural history: Anderson and her husband filed suit against Posthuma and PRHC for medical malpractice.   Prior to trial, Posthuma and PRHC filed a joint motion for partial summary judgment arguing that Iowa Code Section 147.136A(2) capped the Andersons’ damages at $250,000.  

The statute limits the total amount recoverable in any civil action against a healthcare provider for noneconomic damages for personal injury, unless the jury determines that there is a substantial or permanent loss or impairment of a bodily function, substantial disfigurement or death.  

A trial judge grated the motion.  

Analysis: The Iowa Court of Appeals noted that under Iowa law, a survival action for wrongful death cannot be brought on behalf of an unborn child, but a parent can bring a loss of consortium claim for an unborn child. The court reasoned the Andersons could sue for the expense and actual loss of services, companionship and society resulting from the in-utero demise of their baby.  

The court further said a reasonable jury could find Section 147.136A(2)’s death exception applied to this case, and the judge erred in finding it did not apply as a matter of law.  

The court said there was sufficient evidence to allow reasonable jury to find that Miranda Anderson’s ability to give birth only through cesarean section because of the defendants’ alleged negligence was a substantial or permanent loss or impairment of bodily function as well, so the erred in finding this exception inapplicable.  

Whether Miranda Anderson’s scar from the cesarean section is a substantial disfigurement also should have been left to a jury, the court said. “While a scar is not substantial disfigurement per se, it can rise to such a level and is for the jury to decide.”  

Disposition: Reversed and remanded.  

To read the court’s decision, click here. 

AMA Calls for Stronger FDA Oversight of Generative AI in Clinical Care

October 20, 2026 by matray

The American Medical Association has called on the U.S. Food & Drug Administration to establish a risk-based regulatory framework for generative artificial intelligence in medicine, emphasizing the need for clinical evidence, ongoing performance monitoring and manufacturer accountability as AI systems assume increasingly complex roles in patient care.

In an Oct. 19 letter to Rick Abramson, MD, director of the FDA’s Digital Health Center of Excellence, the AMA outlined recommendations for evaluating and regulating generative AI-enabled medical devices. The recommendations respond to an FDA discussion paper released Aug. 18 seeking public input on how the agency should oversee the emerging technology.

The AMA urged regulators to balance technological innovation with patient safety, warning that more flexible regulatory approaches must not weaken standards for demonstrating the safety and effectiveness of AI-enabled medical devices.

The organization identified two central principles for FDA oversight: Regulatory flexibility should not compromise patient safety, and physician involvement in evaluating AI technologies should not substitute for manufacturers demonstrating that their products perform safely and reliably.

The AMA recommended that regulatory requirements reflect a device’s intended clinical use, potential for patient harm and performance throughout its operational life. It also called for stronger post-market surveillance to identify problems that may emerge after AI systems enter clinical practice.

Unlike conventional medical software, generative AI systems can produce new content and perform increasingly sophisticated clinical functions, raising questions about how regulators should assess their reliability and monitor changes in performance over time.

The AMA emphasized that physicians should play a central role in developing clinical performance standards and identifying potential risks. However, it cautioned against relying on physician oversight as the primary safeguard against deficiencies in AI systems.

According to the organization, physician expertise should inform how AI performance is evaluated, but manufacturers must remain responsible for establishing that their products meet appropriate safety and effectiveness standards.

"Manufacturers must remain accountable for the performance of their products, and patients and physicians deserve the confidence that these technologies are safe and effective," said AMA president Willie Underwood, MD.

The AMA offered to collaborate with the FDA and other stakeholders to develop standards for physician evaluation of AI-generated clinical information, ongoing performance assessments and identification of AI failures that could affect patient care.

The recommendations come as the FDA considers new approaches to regulating generative AI-enabled medical devices. Its August discussion paper proposed a framework for assessing device risks, evaluating clinical performance before products reach the market and monitoring their safety after deployment.

The agency also sought feedback on the regulatory implications of increasingly autonomous AI systems capable of performing clinical tasks.

The AMA supports an approach that minimizes unnecessary regulatory burdens while maintaining safeguards proportionate to the risks posed by individual technologies.

The organization's recommendations also have implications for medical professional liability as AI systems take on more consequential clinical responsibilities, raising questions about the respective roles of physicians, technology developers and manufacturers when AI-generated information contributes to patient care.

The AMA has separately developed a governance framework addressing liability, licensure and regulation as increasingly capable AI systems assume clinical functions.

The organization said it intends to continue working with federal regulators, technology developers and physicians to establish standards that support innovation while protecting patients.

Curi Recognized for Removing Mental Health Questions From MPL Insurance Applications

October 20, 2026 by matray

Curi has been named a 2026 Wellbeing First Champion by ALL IN: Wellbeing First for Healthcare, marking the second consecutive year the medical professional liability insurer has received recognition for eliminating potentially stigmatizing mental health questions from its insurance applications.

The Raleigh, N.C.-based healthcare advisory firm was the first medical professional liability insurer to receive the designation in 2025. The recognition is awarded by a coalition led by the Dr. Lorna Breen Foundation, which works to remove barriers that discourage healthcare professionals from seeking mental healthcare.

To qualify for the designation, Curi's medical professional liability insurance applications underwent an annual review to verify that they do not contain invasive or stigmatizing questions about applicants' mental health.

The initiative seeks to address concerns among physicians and other healthcare professionals that disclosing mental health treatment could negatively affect their careers, including their ability to obtain professional liability insurance.

"Physicians and healthcare providers spend their careers taking care of others. We believe they should be able to prioritize their own wellbeing without worrying that seeking care could jeopardize their careers," said Jason Sandner, CEO of Curi.

Sandner said the second consecutive designation reflects the company's continuing commitment to reducing barriers to mental healthcare rather than a one-time change to its application process.

The Wellbeing First Champion program is part of a broader effort to eliminate institutional policies and practices that may discourage healthcare professionals from obtaining mental health services.

Corey Feist, CEO and co-founder of the Dr. Lorna Breen Foundation, said Curi has extended its efforts beyond revising insurance applications to include education, advocacy and discussions about physician mental health.

"Updating paperwork is an essential first step, but real transformation occurs when organizations actively shift the surrounding culture. Curi stands out as the only professional liability insurer in the country going beyond policy change to drive education, open dialogue, and advocacy," Feist said. "Through this culture change work, Curi is creating psychological safety for healthcare professionals to feel supported and empowered to seek care without fear."