Implications of Current Litigation on the Design of AI Systems for Healthcare Delivery

Many calls for explainable AI (XAI) systems in medicine are tied to a desire for AI accountability--accounting for, mitigating, and ultimately preventing harms from AI systems. Because XAI systems provide human-understandable explanations for their output, they are often viewed as a primary path to prevent harms to patients. However, when harm occurs, laws, policies, and regulations also shape AI accountability by impacting how harmed individuals can obtain recourse. Current approaches to XAI explore physicians' medical and relational needs to counter harms to patients, but there is a need to understand how XAI systems should account for the legal considerations of those impacted. We conduct an analysis of 31 legal cases and reported harms to identify patterns around how AI systems impact patient care. Our findings reflect how patients' medical care relies on a complex web of stakeholders--physicians, state health departments, health insurers, care facilities, among others--and many AI systems deployed across their healthcare delivery negatively impact their care. In response, patients have had no option but to seek legal recourse for harms. We shift the frame from physician-centered to patient-centered accountability approaches by describing how lawyers and technologists need to recognize and address where AI harms happen. We present paths for preventing or countering harm (1) by changing liability structures to reflect the role of many stakeholders in shaping how AI systems impact patient care; and (2) by designing XAI systems that can help advocates, such as legal representatives, who provide critical legal expertise and practically support recourse for patients.