From Jeopardy! to Jaundice: The Medical Liability Implications of Dr. Watson and Other Artificial Intelligence Systems

• Author: Jessica S. Allain
• Pages: 1049-1079

From Jeopardy! to Jaundice: The Medical Liability

Implications of Dr. Watson and Other Artificial

Intelligence Systems

In the not so distant future, medical mysteries will crumble in

the face of a more efficient, less dysfunctional Dr. House.1 Imagine

that a patient walks into an emergency room with a wide spectrum

of symptoms. Rather than subject the patient to an infinite battery of

tests, the patient is sent to Watson, a medical supercomputer with

borderline artificial intelligence.2 Watson analyzes the patient’s

genome, reads the patient’s lifetime medical record, and searches

through the entire body of medical knowledge, including the most

cutting-edge research, to determine the likeliest diagnoses and most

promising courses of treatment.3 In a matter of seconds, Watson

compresses a process that normally takes an ordinary physician

weeks to accomplish.4

Copyright 2013, by JESSICA S. ALLAIN.

1. House is a popular TV drama featuring Hugh Laurie as Dr. Gregory

House, a gifted but troubled physician who solves a different medical mystery in

every episode. House M.D., THE INTERNET MOVIE DATABASE , http://www

.imdb.com/title/tt0412142/ (last visited Oct. 25, 2011).

2. Watson is named after International B usiness Machines Corporation’s

(IBM) founder, Thomas J. Watson. STEPHEN BAKER, FINAL JEOPARDY: MAN VS.

MACHINE AND THE QUEST TO KNOW EVER YTHING 19 (2011). Although Watson

currently lacks true artificial intelligence, his ability to lea rn by favoring more

successful algorithms over less successful algorithms shows the rudimentary

beginnings of artificial intelligence. Id. at 150. This Comment focuses on the issue

of emerging artificial intelligence technologies in the healthcare industry.

3. Video, Experts and IBM Insiders Break Down Watson’s Jeopardy! Win,

at 17:40–20:46, TED BLOG (Feb. 18, 2011), http://blog.ted.com/2011/02/18/experts

-and-ibm-insiders-break-down-watsons-jeopardy-win/. Although researchers have

not commented on the possibility of Watson using a patient’s personal genome to

further enhance diagnosis and treatment, it is reasonable to suppose that this

development may occur in the future. IBM has already developed Blue Gene, a

supercomputer designed to analyze the human genome. Blue Gene Watson, IBM,

https://researcher.ibm.com/researcher/view_project.php?id=1207 (last visited Mar.

8, 2013). Further, personalized medicine is trending nationally, which includes

eventually incorporating an individual’s personal genome into his electronic

medical records. Scott Megill, Personalizing Medicine with Genetics, A SMARTER

PLANET (July 15, 2011), http://asmarterplanet.com/blog/2011/07 /personalizing-

medicine-with-genetics.html. Many leading researchers are currently working on

making individualized medicine based on each individual’s genetics a reality.

Video, Richard Resn ick: Welcome to the Genomic Revolution, at 6:30–:50,

TED.COM (Sept. 2011), http://www.ted.com/talks/richard_resnick_welcome_to

_the_genomic_r evolution.html.

4. Video, A System Designed for Answers, at 0:15–:31, IBM, http://www-

03.ibm.com/systems/power/advantages/watson/index.html (last visited Apr. 8,

2013), available at http://www.youtube.com/watch?v=cU-AhmQ363I.

1050 LOUISIANA LAW REVIEW [Vol. 73

Just down the hall in the Intensive Care Unit (ICU), another

Watson station alerts the medical team that micro-changes in a

patient’s biochemistry indicate that a secondary infection will likely

present itself within a few days. Because Watson can monitor

millions of data points and vital signs related to the patient by

interfacing directly with medical monitoring equipment, the

patient’s outcome can significantly improve with faster detection

and treatment.5 In the clinic next door, a third Watson unit is

working with a soldier thousands of miles away in war-torn

Afghanistan.6 Watson can help lead less qualified healthcare

professionals through specialized treatment, expanding the ability of

limited military resources.7

Although International Business Machines Corporation (IBM)

developed Watson to play Jeopardy!, a healthcare team from

Columbia University is currently repurposing “him” to diagnose

patients, suggest treatments, and answer medical questions.8 Watson

5. Researchers have discussed the possibility of integrating Watso n into

other equipment to further his ability to gat her information. Experts and IBM

Insiders Break Down Watson’s Jeopardy! Win, supra note 3, at 12:10–:51.

Integrating Watson into electronic medical monitoring equipment is one

possibility where this could be used.

6. Although researchers have not focused on Watson’s potential for

telemedicine, this would be a natural development for IBM because it has a

research department focused on expanding telemedicine services. Focus on . . .

Telemedicine, IBM (last visited Mar. 8, 2013), http://domino.watson.ibm.com

/odis/odis.nsf/pages/focus.08.html. Researchers are planning to integrate Watson

into other technologies to ex pand his ability. Experts an d IBM Insiders B reak

Down Watson’s Jeopardy! Win, supra note 3, at 12:10–:51, 15:53–16:55.

7. The ability to provide medical services from a distance will also be vital

for recovery response to natural disasters or anywhere else with a shortage of

healthcare providers. See Jonathan M. Teich, Michael M. Wagner, Colin F.

Mackenzie & Klaus O. Schafer, The Informatics Response in Disaster, Terrorism,

and War, 9 J. AM. MED. INFORMATICS ASSOC. 97, 101–04 (2002) (discussing the

importance of telemedicine in disaster response and war).

8. IBM has a history of developing new technology around games. In 1997,

IBM’s Deep Blue computer was the first computer system to beat a grand master

at chess in IBM’s first “Grand Challenge.” BAKER, supra note 2, at 20. IBM’s next

grand challenge came when IBM developed Blue Gene, the world’s first

supercomputer, designed to work on analyzing the human genome. Id. Watson

represents the latest grand challenge. Id. Researchers chose to develop the system

around Jeopardy! because of the advances that would be required in natural

language processing and deep analytics. Id. When Watson competed on

Jeopardy!, he defeated the two greatest Jeopardy! players of all time and won one

million dollars. IBM’s Watson Supercomputer Crowned Jeopardy King, BBC

NEWS (Feb. 17, 2011), http://www.bbc.co.uk/ news/technology-12491688. Darren

Murph, Columbia Doctors Turn to IBM’s Watson for Patient Diagnosis,

Clairvoyance, ENGADGET.COM (Mar. 24, 2011, 1:01 PM), http://www.engadget

.com/2011/03/24/columbia-doctors-turn-to-ibms-watson-for-patient-diagnosis-

cla/. For the sake of simplicity, Watson will be referred to a s “he” throughout this