Product Liability Suits for FDA-Regulated AI/ML Software

in The Future of Medical Device Regulation: Innovation and Protection (I. Glenn Cohen, Timo Minssen, W. Nicholson Price II, Christopher Robertson & Carmel Shachar eds., Cambridge University Press, 2021 Forthcoming)

Brooklyn Law School, Legal Studies Paper No. 656

15 Pages Posted: 17 Dec 2020 Last revised: 22 Jan 2021

See all articles by Barbara J. Evans

Barbara J. Evans

University of Florida Levin College of Law

Frank A. Pasquale

Brooklyn Law School

Date Written: October 26, 2020

Abstract

The 21st Century Cures Act confirmed the FDA’s authority to regulate certain categories of software that, increasingly, incorporate artificial intelligence/machine learning (AI/ML) techniques. The agency’s September 27, 2019 draft guidance on Clinical Decision Support Software proposed an approach for regulating CDS software and shed light on plans for regulating genomic bioinformatics software (whether or not it constitutes CDS software). No matter how the FDA’s regulatory approach ultimately evolves, the agency’s involvement in this sphere has an important – and underexamined – implication: FDA-regulated software seemingly has the status of a medical product (as opposed to an informational service), which opens the door to product liability for defects causing patient injury. When a diagnostic or treatment decision relies on FDA-regulated CDS software, will mistakes invite strict liability, as opposed to being judged by the professional or general negligence standards of care that traditionally governed diagnostic and therapeutic errors? This article explores the policy rationales for product liability suits and asks whether such suits may have a helpful role to play as an adjunct to FDA oversight in promoting safety, effectiveness, and transparency of CDS software as it moves into wider use in clinical health care settings.

Keywords: Clinical Decision Support (CDS) Software, Food and Drug Administration (FDA), Software as a Medical Device (SaMD), product liability, artificial intelligence

JEL Classification: I18, I11, I1

Suggested Citation

Evans, Barbara J. and Pasquale, Frank A., Product Liability Suits for FDA-Regulated AI/ML Software (October 26, 2020). in The Future of Medical Device Regulation: Innovation and Protection (I. Glenn Cohen, Timo Minssen, W. Nicholson Price II, Christopher Robertson & Carmel Shachar eds., Cambridge University Press, 2021 Forthcoming), Brooklyn Law School, Legal Studies Paper No. 656, Available at SSRN: https://ssrn.com/abstract=3719407

Barbara J. Evans (Contact Author)

University of Florida Levin College of Law ( email )

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

Frank A. Pasquale

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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