New Proposed Rule Places Healthcare Professionals at Risk for Lawsuits!

November 3, 2023

ISMS and a diverse coalition of medical professional organizations are urging Washington lawmakers to reconsider the U.S. Department of Health and Human Services’ Proposed Rule related to potential biases with the use of clinical algorithms.

While we support the Department’s efforts to improve the use of clinical algorithms, we adamantly oppose that the Proposed Rule positions healthcare professionals to be at a high risk for liability to achieve those improvements. In other words, this draft places the risk on healthcare professionals for discrimination that may result from a clinical decision based on a biased algorithm.

The threat of lawsuits could discourage any use of clinical algorithms altogether. That’s because the Proposed Rule allows for an unlimited period of potential liability stemming from the possibility that alleged biases might not be uncovered for years. What that means for healthcare professionals is that they could still be found liable for biases that they were not responsible for and, in some cases, did not even know about.

Encouraging restraint in the use of clinical algorithms is appropriate. But discouraging their use completely, as the Proposed Rule will do, potentially denies important improvements in healthcare to the very populations HHS intends to help.

If you have questions, please contact the ISMS Health Policy Research and Advocacy team by email.