Artificial Intelligence: Is the Health Care Sector Ready for the Rollout?

On July 17, 2024, Foley & Lardner LLP hosted the Boston Health Care AI & Technology Investor Summit with Endeavor Venture Funds, bringing together hundreds of attendees in person and virtually to discuss issues surrounding the rollout of artificial intelligence (AI) solutions for the health care sector. Attendees included leaders from health systems and academic medical centers, health care and life sciences-focused investors and venture funds, entrepreneurs, and emerging companies. Below are a few of the key themes that emerged:

Corporate Governance to Combat High-Risk AI

The group discussed how corporate governance can combat concerns with the ethical implementation of AI. Establishing policies and procedures outlining how to evaluate and use AI can help minimize a company’s liability down the road.

Panelists urged businesses to start setting up structures to vet, oversee, and monitor AI now, prior to widescale implementation. For example, businesses can preemptively limit the use of high-risk AI tools that do not sufficiently protect consumers. Companies can also look to the White House’s “Blue Print for an AI Bill of Rights,” which outlines five basic principles to follow when designing and using AI:

• Safe and Effective Systems;
• Algorithmic Discrimination Protections;
• Data Privacy;
• Notice and Explanation; and
• Human Alternatives, Consideration, and Fallback.

Use-Case of AI Solutions: Reducing Physician Burnout

While many fear that AI will replace certain jobs or reduce human interaction in health care, panelists recommended that developers and consumers think about AI as a way to support professionals in their roles. AI solutions can free up time to allow practitioners to perform the key aspects of their jobs. For example, AI can be used to aggregate and analyze high volumes of data. This type of generative AI can help clinicians review hundreds of pages of patient records and suggest strong candidates for clinical trials or lesser-known treatments and protocols. Similarly, radiologists can use AI to help review imaging scans and diagnose conditions and disease states. In addition, AI is being used in research to optimize genomic prediction. Speakers explained that using AI in this manner should help clinicians optimize their practices and minimize burnout.

However, while tools like this appear to increase clinician’s efficiency and save time, the benefits can be challenging to measure. In turn, these types of supportive technologies are more challenging to sell because there is no clear way to demonstrate the return on investment. Investors cautioned entrepreneurs to bring clinicians into the conversation when developing AI products to ensure products in development not only align with the industry needs, but also show returns in meaningful ways.

Looking Forward– the Regulatory Landscape

In addition to the issues discussed at the Summit, industry players should keep an eye out for upcoming laws that address AI. While the government has been slow to regulate the development and use of AI, we know from watching the rise of telehealth that laws and official guidance will start coming down the pipeline. For example, a number of states have created task forces and councils to study and monitor the use of AI. A handful of states have even passed early regulation, previewing what is to come:

• In March, Utah passed the “Artificial Intelligence Act,” which established the first disclosure requirements for the use of generative AI in regulated occupations starting May 1, 2024.
• In April, Florida passed HB 919, which began regulating the use of AI in political advertising on July 1, 2024.
• In May, Colorado passed the “Consumer Protections for Interactions with Artificial Intelligence” bill, the first state law regulating “high-risk artificial intelligence systems.” This law has an effective date of February 1, 2026. For more information, please see our prior blog “Colorado Passes New AI Law to Protect Consumer Interactions.”

As such, companies are left with the opportunity to model standards for ethical and safe uses of AI and early adopters can act now to help influence AI policy.

With the rise of AI, the health care industry must be careful to balance the excitement of early adoption with existing obligations (for example, protecting patient privacy and prevent discriminatory clinical outcomes). The Summit provided key stakeholders with an opportunity to convene and discuss current issues about AI, but the conversation on how to implement and use this technology safely and successfully in clinical settings is just beginning.

Foley is monitoring this evolving legal and business landscape closely across multiple sectors, including innovative technology, health care and life sciences, and intellectual property, with a team of Foley attorneys dedicated to these efforts. Please reach out to the authors, your Foley relationship partner, to our Artificial Intelligence Area of Focus and Health Care & Life Sciences Sector with any questions.