OCTOBER 2021-

FEBRUARY 2022 OPEN & DISTANCE LEARNING LAW691/AI & LAW

Tutorial Question

Tadashee developed a harsh, productive cough together with severe pain in his right chest
that intensifies with inspiration. He then went to 6Hero Hospital to seek for treatment. 6Hero
Hospital, an early adopter of advanced medical technologies, decided to use BayXam, an AI
diagnostic tool instead of radiologists to interpret chest x-ray images as a way to reduce labour
costs and increase efficiency. Following a chest x-ray view delegated by the attending
physician to BayXam, Tadashee was prescribed with prednisolone, a steroid medication to
abate his cough and breathing problem. During the 5 days of treatment, Tadashee’s condition
worsened, and he was rushed to the hospital. It was later identified that for unknown reasons,
BayXam missed an obvious pneumonia causing Tadashee to suffer from septic shock. After
further investigations, it was discovered that BayXam’s misdiagnosis results from
discrepancies between the data used to train BayXam and the real-world clinical scenario due
to limited availability of high-quality training data at 6Hero Hospital. AI systems are not as
equipped as humans to recognize when there is a relevant change in context or data that can
impact the validity of learned predictive assumptions. Therefore, AI systems may unknowingly
apply programmed methodology for assessment inappropriately, resulting in error.

In order to finance Tadashee’s hospital care, his family contacted Tadashee’s insurance agent
for his health insurance coverage that he applied for. To their surprise, Tadashee’s medical
insurance application was rejected after the internal application system placed him in a high-
risk category based on his health record. Apparently, Tadashee’s AI-powered wearable,
GoGoTom, that he used to monitor his early-stage diabetes has been collecting his health
record and stored it in the provider’s data depository. Unfortunately, Tadashee’s personal
information was disclosed to a marketer and combined into a profile. in a database owned by
a data broker. The data broker later sold access to the database to the health insurance
company where Tadashee’s application for insurance coverage was made.

Advice Tadashee on the following:

1. Assuming that Tadashee’s has been briefed with the use of BayXam as an aid to the
attending physician, can he sue the attending physician under medical negligence for
the misdiagnosis?

2. Whether Tadashee has any course of action against GoGoTom provider under the
Personal Data Protection Act 2010 for leaking his personal information to third parties.

You have attempted quite a similar question before. With the additional facts [para 2], would
your answer be different? What extra information will you add to your answer?

40 marks