Medical Malpractice in the Age of AI: What Virginia Patients Should Know

Artificial intelligence (AI) is everywhere today, whether you choose to use it in your personal life or not. It’s playing an increasing role in virtually all industries, including healthcare. AI promises faster results, improved accuracy, and better patient outcomes.

However, if you’ve been paying attention to the news, you know that AI is prone to problems. So-called “hallucinations” happen when AIs like ChatGPT make things up out of whole cloth. What happens when that occurs within the bounds of healthcare? It’s opening up a wide range of questions about liability when something goes wrong.

If an AI system misdiagnoses a condition or recommends the wrong treatment, who’s responsible? Is it the doctor? The hospital? The software company?

As the uses of AI in healthcare evolve, Virginia patients need to understand how AI medical malpractice claims might unfold and how the law is changing.

AI in modern medicine

AI is already playing multiple roles in healthcare, including:

• Radiology and imaging: Algorithms can flag tumors, track cancer progression, and identify fractures in X-rays, MRIs, and CT scans faster than human readers in many cases.
• Pathology: AI tools help in identifying cancer cells or other abnormalities in lab samples.
• Predictive analytics: Machine learning can gauge patient data to predict the risk of complications or readmission.
• Front and back office: AI systems help with scheduling, billing, and triaging patients in hospitals and clinics.

While most of these tools are used with physician oversight, sometimes the line between human and machine decision-making gets a little blurry.

Can you sue over an AI misdiagnosis?

One of the most significant worries in this emerging field is AI misdiagnosis liability. If AI fails to identify cancer in a scan or provides faulty recommendations, is that medical malpractice?

The answer depends on how the technology was used and who relied on it.

Situations where AI could contribute to malpractice:

• A doctor relies entirely on an AI-generated diagnostic report without cross-checking results.
• A hospital deploys an AI system known to have accuracy issues, despite warnings or recalls.
• A software bug or algorithm bias leads to consistent misdiagnoses in certain populations.
• A provider fails to monitor or override incorrect recommendations made by AI.

In all these cases, patients may suffer harm as a result, and the question becomes who is legally responsible.

How Virginia law may apply

Virginia medical malpractice law traditionally holds licensed healthcare providers (doctors, nurses, hospitals, etc.) responsible for negligence that causes patient harm. However, AI isn’t a licensed provider. It can’t be sued. That creates a legal gray area.

1. Physician responsibility

In most cases, the physician in question remains liable. AI is a tool, like a stethoscope or a blood pressure monitor. If a doctor misuses it, fails to verify results, or ignores obvious errors, they may still be responsible under Virginia malpractice standards.

Doctors have a duty of care to their patients, and that duty includes exercising judgment, even when AI is involved.

2. Hospital or facility responsibility

Hospitals and clinics that adopt AI systems have to make sure that the technology is:

• Approved and tested
• Properly integrated into workflows
• Used by trained professionals
• Monitored for reliability and bias

If a facility negligently implements an AI system or fails to address known issues, it may be liable.

3. Product liability

The software company or device manufacturer may be liable under product liability law in some situations, especially if the AI was defective or failed to operate in the manner for which it was intended.

These types of claims against tech companies are complex. Relevant considerations and factors include:

• Whether the product is FDA-approved or used off-label
• The relationship between the provider and the software vendor
• Disclaimers or waivers in place

This area of law is still developing, and Virginia courts have yet to establish clear rules around AI vendors and malpractice exposure.

Regulatory landscape: Who’s watching the machines?

AI used in healthcare is regulated at the federal level by agencies like the U.S. Food and Drug Administration (FDA). But the speed of innovation is getting ahead of regulation.

Some AI tools are approved as “Software as a Medical Device” (SaMD) and have to meet safety and effectiveness standards. Others (particularly those used for administrative or decision support) may fly under the radar.

In Virginia, there are currently no AI-specific malpractice statutes, but existing negligence and product liability laws still apply. The key legal question will be: Did the provider act reasonably given the information available at the time?

Challenges in proving AI-related malpractice

Even if a patient is harmed by an AI error, proving malpractice can be tough. These cases often involve:

• Proprietary algorithms: Many AI systems are “black boxes” that don’t explain how they reached a conclusion.
• Data bias: AI trained on biased or incomplete datasets may make faulty recommendations, particularly for underrepresented/understudied groups.
• Shared responsibility: Determining how much the provider relied on AI vs. their own judgment can be impossible.

These complexities make it that much more important to work with a medical malpractice law firm that understands both the technical and legal sides of AI.

What Virginia patients should watch for

You may be receiving care in a hospital or clinic that uses AI and not even know it. Transparency around AI use varies a lot, and providers are not necessarily required to say that they use AI in any capacity.

That said, here are some red flags that may signal potential malpractice involving AI:

• You were misdiagnosed or received delayed care despite regular visits or tests
• Your provider relied heavily on AI results without explanation, which may raise concerns about informed consent or adequate communication
• A second opinion revealed a major error in imaging or lab interpretations
• You experienced harm after care involving robotic-assisted surgery or automated triage

If you suspect that an AI-related tool played a role in your injury, it’s important to speak with a malpractice attorney as soon as possible.

The future of AI in healthcare and legal accountability

There’s no doubt that AI has the potential to change medicine dramatically. But as the technology becomes more prevalent in clinical care, it has to be accompanied by clear standards, oversight, and legal accountability.

Policymakers, hospitals, and courts are only beginning to wrestle with the implications of AI in healthcare. Patients should not be left in the dark or without recourse when a machine gets it wrong.

Injured by a medical error involving AI? We’re here to help.

At Phelan Petty, we’re at the forefront of investigating medical malpractice in the age of AI. If you were harmed by a misdiagnosis, delayed treatment, or surgical error that involved artificial intelligence, contact us today for a free consultation.