By Rob Tobin, partner, and Roger Davis, lawyer at Kennedys.
Technological advancements in healthtech are revolutionising the healthcare sector, and the claims landscape with it.
Developments are arising in areas such as genomics and precision medicine, robotic-assisted surgery, and wearable digital devices are already enhancing patient wellbeing and care. Last year, the government announced an investment of £21 million in AI technologies across the NHS. With the right checks and balances in place, we will likely reach a point when AI-based decision making will exceed human judgement.
Such advancements are welcome but bring an increased risk of new types of claims.
Our recently published report, ‘Healthtech in the future: the legal ramifications,’ highlights key areas of focus and suggests steps to minimise and mitigate risks.
Genomics and precision medicine
The NHS now has the ability to perform whole genomic sequencing, the world’s first clinical service to routinely offer this. With reported reductions in cost due to new technologies and competition, people anticipate that its use will become more widespread.
Claims could arise where patients have poor outcomes following treatment based on doctors’ interpretation of their genetic profiles. In clinical negligence claims, practitioners may also employ genetic testing to determine causation. For example, to prove that a claimant who suffers neurological injury due to negligence has a pre-existing or predisposition to neurological impairment.
In addition to scrutinising insurance policies to ensure sufficient coverage, clinicians should also undergo training, including learning how to intervene when they suspect that profiling is incorrect.
Remote and virtual care
Healthcare providers are increasingly utilising remote and virtual care, such as telephone consultations and AI-enabled apps used to triage patients. We wait to see if the uptake in virtual and telemedicine affects notifications and claim volumes.
Alongside mandatory training, providers should also ensure that contracts and licence agreements with the developers/producers of such apps include indemnity for any harm caused due to malfunctions.
Wearable technology
The use of digital devices, known as ‘wearables,’ is on the rise for monitoring patients’ health and fitness, reducing the necessity for routine in-person appointments.
Claims may arise if clinicians fail to accurately interpret data or do not intervene when it shows an imminent risk to health. Training in data analytics and maintenance of devices is therefore vital, as are assurances from manufacturers that they will indemnify providers if devices are defective. The successful operation of the device is to a certain extent dependent on the person wearing it, therefore cases of contributory negligence may be more commonplace.
Robotic-assisted surgery
More than 100 UK hospitals now offer robotic-assisted surgery. Whilst this technology brings both opportunities and benefits, potential for claims to arise exists in this grow