Dr. Robot

17 Pages Posted: 15 Dec 2017 Last revised: 4 Jan 2018

See all articles by Jane R. Bambauer

Jane R. Bambauer

University of Florida Levin College of Law; University of Florida - College of Journalism & Communication; University of Arizona - James E. Rogers College of Law

Date Written: December 24, 2017


This Essay explores whether health and medical AI should be regulated more like doctors than like devices, and what difference it would make. It concludes that although the FDA is poised to heavily regulate AI with demanding premarket testing standards out of concern for public safety, the risks posed from medical AI should be managed by comparing their performance to the costs and error of their nearest substitutes: doctors. AI will out-perform doctors in diagnosis and treatment management; indeed, it already does in some areas. Thus, the public safety concerns that are at the heart of medical device regulations are going to be less relevant in the context of medical AI than some of the other, more ancillary duties that doctors usually owe to their patients and to society: duties to provide confidentiality, to warn, to provide informed consent, and to avoid conflicts of interest. In most cases, treating robots like doctors rather than machines reveals a flaw in the assumptions and fundamental goals of our longstanding rules of professional conduct. This case study can teach us something about future-proofing law: while most legal scholars have focused on adjustments to the law in order to optimize our future robots, it is just as plausible that robots will help us adjust and optimize our aging laws.

Keywords: Artificial intelligence, AI, medical AI, regulation, FDA, law and technology, privacy, medical malpractice

Suggested Citation

Yakowitz Bambauer, Jane R., Dr. Robot (December 24, 2017). 51 UC Davis Law Review 383 (2017), Arizona Legal Studies Discussion Paper No. 17-28, Available at SSRN: https://ssrn.com/abstract=3087983

Jane R. Yakowitz Bambauer (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

University of Florida - College of Journalism & Communication ( email )

United States

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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