What type of liability is IBM Watson?

Our lives are run by algorithms. Algorithms that are combined together can make a very powerful machine, even a machine that can think for itself. IBM has invented a product known as Watson, a supercomputer that understands both unstructured data and sophisticated data which is used to formulate solutions unique to the individual that is using it. Although Watson has a variety of uses within different sectors such as education and law, for our purposes we will be discussing Watson in a medical sense. Currently Watson is being used by fourteen various hospitals and clinics throughout the country, pairing deathly ill patients with experimental treatment clinics. The fourteen hospitals are hyperlinked here. Read the hyperlinked article if interested in learning more about how each medical center utilizes the cloud based computing system IBM Watson has become a master in.

In the last video we discussed three very different pieces of disruptive technologies within the healthcare-sciences industry. We discussed IBM Watson, Metabolomx, and Wize Mirror. The video above discusses IBM Watson rather than the other two, due to Watson being a sophisticated API (application programming interface) giving Watson the ability to learn new things and develop a different strategies in helping to treat severely ill people.

Watson operates on a give and take system meaning people input their information into it and Watson stores information from news articles, tweets, medical journals, experimental treatments, patient logs, etc. to provide the best possible solution based on an individual need. The video discusses 4 different types of liability: strict liability, negligence, vicarious liability, and joint and several liabilities. The video poses the question on who should be held responsible when a piece of technology makes an error? Is it the programmer who coded the software to make the device perform a specific action that should be held responsible? When technology malfunctions, is the operator or owner held responsible if the technology causes harm to society?

NOTE: The video above shows a clip from IBM’s original work on YouTube called “How It Works, IBM Watson Health.” The link to the IBM’s video is here. The video above only covers about a minute of IBM’s original video, therefore I highly encourage everyone to watch IBM’s 5 minute video.

According to the legal dictionary, strict liability is “the legal responsibility for damages even if the person found strictly liable was not at fault or negligent.” In other words, even if a situation arises where it is not your fault, your employer can be held strictly responsible for the liabilities that arise from the situation. Previously in the law there have been employers who are strictly liable for what their employees do. In that regard is Watson considered an employee of IBM? Or is it considered a piece of technology that is developed by IBM employees and then distributed to the public? Who is responsible when Watson makes a mistake?

With defectively manufactured products the issue of negligence arises. Cornell University Law School cites negligence as “the failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstance.” In other words, there is a missing action that someone failed to complete which caused harm to another party. In Watson’s case, what if the system failed to provide a proper recommendation to a doctor treating a patient with a heart condition and that person was given the wrong medication. The wrong medication caused harm to the patient resulting in a lawsuit. Who is responsible? One could argue that the doctor and patient who logged the information into Watson, failed to include an important piece of information and therefore should be held responsible for what happened to the patient. However, one could argue differently by saying that since Watson was wrong in the recommendation and guaranteed the doctor a high success rate, Watson should be held responsible for damages caused to the patient.

Relating to negligence is vicarious liability in which one party is held accountable for the actions of another. Let’s take the same example from above. A patient has a heart condition and Watson provides the wrong recommendation to the doctor due to improperly logging in a patient’s medical history. In vicarious liability the doctor, the hospital or center the doctor practices medicine in, and IBM Watson can all be held responsible. Providing that Watson is considered an employee of IBM, there are three parties that may have caused harm in this case: IBM Watson (employee 1), IBM programmers (employee 2), and the doctor who utilized Watson to treat his/her patient. Who in this sense would be responsible? IBM Watson can be that one party that can be held accountable for the actions made by the doctor, after faulty recommendations were provided.

Separate from vicarious liability are joint and several liabilities. This type of liability is where “two or more parties are jointly responsible for an event or act that results in damages to another party.” In the event of our heart patient, would you argue that IBM Watson and the doctor is responsible for harm to the patient?

The issue of liabilities is an important one and the reason I bring it up is to not point fingers at one party or another, but to begin thinking about who is accountable when a mistake happens in the medical field involving a computer. Taken what has been said in the video and what is written above who do you think is responsible when our heart patient is prescribed the wrong medication? Is it the doctor, Watson who assisted the doctor, or IBM itself? You decide based on the 4 different types of liability discussed above.

The link to the Youtube video seen above is shown here: https://www.youtube.com/watch?v=UgfPlISKNlU

The link to IBM’s 5 Minute Video on how IBM operates is here: https://www.youtube.com/watch?v=ZPXCF5e1_HI

, , ,

One Response to What type of liability is IBM Watson?

  1. Paras Patel November 15, 2015 at 11:25 pm #

    With technology running more and more of humans’ lives and interactions, liability in the event of an error is becoming an ever more pressing issue. From autonomous driving to IBM’s Watson diagnosing and prescribing treatments for patients, the liability issue needs to be addressed before an incident occurs. Resolving the issue before it occurs would save time, money, and maybe even lives before it is too late. Many people have called for new laws to be created and imposed for evolving technology. In a previous assignment for Professor Shannon, I researched liability for autonomous vehicles and found that there is already existing laws for products liability. I believe that these laws would also cover products liability for medical diagnoses from machines.
    Part of my analysis on liability for autonomous vehicles was based off papers from Professor Villasenor of UCLA and the University of Washington’s Technology and Policy Clinic. These papers found that whether or not automakers claim liability, it is already theirs. In my analysis for autonomous driving, I found that “the strict liability precedent set in Greenman v. Yuba Power Products, Inc. stated that manufacturers know a buyer isn’t going to inspect a product before purchasing it. Although a car buyer will inspect a car before driving it off the lot, they can’t thoroughly inspect its internal parts. On top of that, autonomous cars feature deep software integration. A reasonable customer can’t be expected to inspect all the software code before purchasing, but rather rely on the manufacturer and seller.”
    Based off of those findings, we can substitute it in the instance of Watson making diagnoses and treatment plans. A patient, either directly or indirectly through a doctor or insurance, would be paying to have Watson analyze their case. Although a patient would be buying Watson’s service, IBM, the manufacturer of Watson, knows that no reasonable patient would be able to inspect Watson and its algorithms before purchasing the service. Instead, the patient would have to rely on the manufacturer and seller. Therefore in the case of an error by Watson, IBM would be held liable for negligence under strict liability. In the case of a patient’s doctor inputting incorrect or incomplete information to Watson, the doctor would be held liable for medical malpractice.
    As advised by several professors, in the event that some form of negligence occurs, what is likely to happen is that the plaintiff’s lawyer will file a suit against anyone involved and leave the burden of proof on the defendant to prove that they were not negligent.

Leave a Reply