Digging into the Accountability Gap: Operator’s Civil Liability in Healthcare AI-systems

The increasing autonomy of artificial intelligence systems (AI-systems) has put the debate about a possible ‘accountability gap’ in liability law center stage. The debate is about a possible failure of incumbent liability regimes to pinpoint the accountable agent, if in the wrongdoing an AI-system is involved. A recent attempt to address this ‘accountability gap’ is a proposal of the European Parliament, which advances laws on civil liability for the entities that control AI-systems. These newly created entities, which have no blueprint yet in liability law, are called ‘Operators’. By branching out on the healthcare applications of AI-systems, this chapter analyzes the concept of operator’s civil liability. It starts with a description of the liability concepts presented in the proposed legislation, and how they fit doctrinally with the laws and regulations of the current medical liability regime. Complementing the doctrinal analysis, this chapter employs a law and economics analysis, which showcases that the accountability gap is a serious challenge also from a consequentialist point of view. Lastly, this chapter proposes a few legal alternatives that depart from the incumbent concept of strict liability.