How AI is Rewriting the Rules of Medical Malpractice

AI is widely expected to transform many industries, but in healthcare – already one of the most technologically advanced sectors – it is doing more than changing how care is delivered. From where we sit, it is also prompting signs of change in how the medical malpractice market is thinking about future risk and responsibility.

Medical malpractice has never been a straightforward class in our experience. Long-tail claims, multi-million-pound losses and persistent volatility have burnt the fingers of many carriers over the years. The core battleground has always been liability, and while that fundamental challenge hasn’t changed, the context in which it sits has.

The growth of telemedicine and the increasing use of AI across healthcare have introduced new layers of complexity. Diagnosis, treatment recommendations, monitoring and administrative processes are now influenced – or even controlled – by technology.

When everything works as intended, the benefits may be considerable: faster access to care, more efficient systems and, potentially, better and more accurate outcomes. But when something goes wrong, the question of liability becomes far less clear-cut. If a patient receives a diagnosis or treatment recommendation through a digital platform and suffers harm, determining where responsibility ultimately lies – particularly where AI has made a judgement call – is a fresh challenge for the insurance market.

Muddying the waters of liability

When a clinician makes a decision supported by AI, is that ultimately their judgement, or a shared outcome shaped by the tool they are using? If an AI system flags a risk that is missed, or suggests a course of action to the physician that proves harmful, how should responsibility be allocated?

These are the questions that underwriters and brokers are grappling with as the traditional lines that have underpinned medical malpractice insurance begin to blur. Historically, there has been a relatively clear distinction between professional liability and product liability, but AI does not sit neatly in either category. It is neither a passive tool nor an autonomous actor, but something in between, informing and influencing clinical decision-making. And to muddy the liability waters even further, the rationale behind those decisions is not always immediately transparent.

While it may be possible to understand what a model has been trained on, it is often far harder to explain how it arrived at a particular decision in a specific case. For underwriters and brokers, that lack of explainability can create challenges when allocating liability and defending claims. When outcomes are not as intended, claimants and their representatives are likely to test every link in the chain – from clinician and provider to the platform and its developer – creating the potential for disputes involving multiple parties and unclear responsibilities.

The difficulty facing the insurance sector may be less about identifying these challenges, and more about how to respond to them. Understanding how an AI-enabled healthcare risk should be structured, placed and supported requires more than a surface-level grasp of the mechanics. It demands a risk partner who can interrogate how care is delivered, understand where clinical decision-making sits, assess the role technology is playing and, critically, determine how policies respond when all those elements intersect.

That’s why Burns & Wilcox Global Solutions has built a team with more than 75 years’ combined experience across healthcare and related cyber risks, one that has seen an array of exposures and court judgements and has written policy wordings that clients rely upon. Increasingly, in our view, that level of expertise is more than a nice to have. It is often a key differentiator if brokers are to ensure their clients’ cover will stand up when claims and court decisions put it to the test.

A class that demands specialist expertise

Medical malpractice has long been regarded as a class where specialist expertise plays a crucial role, yet capacity continues to enter the market and policy wording can fail to reflect the true complexity and loss potential. That disconnect is exactly what our value proposition at Burns & Wilcox Global Solutions is designed to address.

The market may continue to shift even further towards specialist underwriters and brokers who understand both the clinical and technological dimensions of risk, and who can navigate the increasingly blurred boundary between medical malpractice and related cyber coverage. That means identifying where policies overlap, where they leave gaps and how they respond in multi-party claims scenarios involving clinicians, providers and technology vendors.

In this environment, the traditional broker skills of negotiating with underwriters and structuring programmes remain critical, but we believe they must now be applied to a far more complex risk landscape. Understanding clients’ unique exposures and needs is essential, as is the ability to challenge assumptions, test coverage and ensure that clients are not exposed to gaps that only become apparent when a claim arises.

As AI continues to reshape healthcare, liability is, in our view, becoming a distributed, layered and often uncertain risk rather than a single point of failure. Guiding clients through that complexity – and ensuring their cover keeps pace – is where specialist expertise can make the real difference.