The increasing use of artificial intelligence and advanced technology in health care is setting into motion a wave of lawsuits that attorneys expect to grow in the months ahead. Insurers Humana, Cigna, and UnitedHealthcare are facing class actions from consumers and their estates for allegedly deploying advanced technology to deny claims. The litigation comes amid increasing efforts from Congress and the Biden administration to develop a legal framework around the quickly expanding role of artificial intelligence in health care.
“AI is finding its way into every aspect of our lives. And regulators and legislators are trying to keep up with it, but not doing a great job of that,” said Ryan Clarkson, founder of Clarkson Law Firm, the public interest firm behind the suits against insurers. Two of Clarkson’s lawsuits focus on technology used to make coverage decisions for beneficiaries in Medicare managed care plans.
These private Medicare Advantage plans are under scrutiny from lawmakers, regulators, and patients for using advanced approval—or “prior authorization”—to deny coverage that’s typically granted in fee-for-service Medicare. More than 30 House Democrats say the problem may have worsened with the plans’ increasing use of “AI or algorithmic software managed by firms” like naviHealth and CareCentrix “to assist in their coverage determinations.”
These AI-powered tools analyze data that helps insurers make coverage decisions. Insurers “have to” use advanced technology, said Michael Levinson, a Berger Singerman LLP partner who is also a licensed physician. “The volume of claims is tremendous.”
It also requires the Department of Health and Human Services to set up a safety program to take in reports on “harms or unsafe healthcare practices involving AI.”
For health, the order calls for “responsible use of AI in healthcare” and affordable drug development. The executive order is “pretty vague,” but sets out “reasonable goals” for the HHS, said Nicholson Price, a University of Michigan law professor and faculty affiliate at Harvard’s Project on Precision Medicine, Artificial Intelligence, and the Law.