Will You Be Sued for Not Using AI?
For decades, the “Standard of Care” in medicine has been defined by what a reasonably competent physician would do in similar circumstances. Historically, this standard protected doctors who followed the pack. If most doctors weren’t using a specific technology, you generally couldn’t be sued for not using it either.
But we are approaching a legal tipping point.
As Artificial Intelligence (AI) tools in radiology, pathology, and cardiology begin to outperform human accuracy, the legal question is shifting. We are moving from asking “Did the AI cause an error?” to a far more uncomfortable question for the medical establishment: “Was it negligent to rely solely on human eyes when a superior tool was available?”
The “T.J. Hooper” Rule: When Custom is Not Enough
To understand the future of AI malpractice, we have to look back to 1932.
In the famous legal case The T.J. Hooper, a tugboat company was sued after losing barges in a storm. The tugboats didn’t have working radios to receive weather warnings. The defense argued that they weren’t negligent because, at the time, it wasn’t “industry standard” for tugboats to carry radios.
Judge Learned Hand rejected that defense. He ruled that an industry cannot set its own standard of care if that standard is dangerously outdated. If a new technology (like a radio) is available, affordable, and clearly improves safety, failing to use it is negligence—even if “everyone else” is failing to use it too.
This is the precipice on which modern medicine now stands.
The “Failure to Utilize” Claim
In 2025, we are seeing AI algorithms that can detect breast cancer on mammograms years before it is visible to the human eye, and tools that can predict septic shock hours before a nurse would notice the symptoms.
If a patient suffers a negative outcome that could have been prevented by one of these widely available tools, a plaintiff can arguably build a case for “Failure to Utilize Available Technology.”
The argument is simple:
- Availability: The AI tool was integrated into the hospital’s system or easily accessible.
- Superiority: Clinical data shows the AI has a higher detection rate than human review alone.
- Causation: Had the doctor utilized the AI as a “second opinion,” the diagnosis would have been made, and the harm prevented.
In this scenario, the doctor’s defense—“I relied on my training and experience”—may no longer be sufficient. If “training and experience” has a 15% error rate and the AI has a 2% error rate, the “reasonable physician” may soon be legally obligated to consult the machine.
The Double-Edged Sword for Hospitals
This evolution creates a complex liability landscape for hospitals and healthcare networks.
On one hand, adopting AI tools is expensive and requires training. On the other hand, not adopting them creates a target for litigation. If a hospital system is aware that an AI tool significantly reduces diagnostic errors (like missed strokes in the ER) but refuses to implement it due to cost, they risk corporate negligence claims when a patient is injured by that very error.
We expect to see discovery processes in future malpractice cases that specifically ask: Did the hospital evaluate AI tools for this department? Why were they rejected? Was the decision financial?
Evaluating the “Human-Only” Error
At [Your Firm Name], we are closely monitoring how Pennsylvania courts interpret the standard of care as these technologies proliferate. When we review a case involving a missed diagnosis or a delayed treatment, we are now asking new questions:
- Was an AI assist available? Did the hospital have software running in the background that the physician ignored or turned off?
- What is the statistical gap? Is this a condition (like lung nodule detection) where the gap between human and AI accuracy is statistically undeniable?
- The “Hybrid” Standard: Did the physician fail to use the AI as a confirmative step, essentially skipping a safety check?
Conclusion: The Standard is Moving
The definition of “reasonable care” is not static; it evolves with technology. Just as it would be malpractice today to diagnose a broken bone without an X-ray, the day is coming when it will be malpractice to diagnose complex conditions without AI.
If you or a loved one suffered from a misdiagnosis or medical error, you need an attorney who understands not just the medicine of the past, but the obligations of the present.