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Lured by promises of time savings and more face-to-face interactions with patients, a growing number of doctors are using artificial intelligence-backed scribes for clinical documentation.
But experts say there’s a hidden cost: the risk of medical malpractice.
As AI scribes move from limited pilots to routine use in exam rooms, the technology can make documentation mistakes that are hard to detect, leading to potential medical errors and malpractice lawsuits as hospitals increase their use, experts say. And clinicians are ultimately on the hook for those mistakes, regardless of whether they used AI to generate notes.
While there are no public malpractice cases tied to AI scribes, “that doesn’t mean there are zero,” said Bill Satterwhite, a practicing physician and licensed attorney who serves as principal of healthcare performance improvement and physician enterprise at Huron Consulting Group. That’s because lawsuits often take a while to work their way through the legal system, especially those dealing with sensitive personal information like medical malpractice.
The risks are increasing, as more than 1 in 4 physicians use AI to document billing codes, medical charts or visit notes, as well as generate chart summaries, according to a survey by the American Medical Association. Another 7 in 10 respondents see opportunities for AI to automate clinical and administrative tasks contributing to burnout, the survey found.
“We’ve seen a lot of benefits in terms of work-life balance for providers,” said Julie Massey, senior partner of digital and technology transformation and co-leader of the clinical technology innovation practice at healthcare consulting firm Chartis.
Still, research shows that AI scribes produce significantly worse quality clinical documentation than humans, which could raise the risk of medical malpractice if patients receive improper care.
A patient, for example, could experience a negative drug interaction if an AI scribe omits information about the medication a patient is already taking.
In a study published in the Annals of Internal Medicine this year, human graders scored primary care notes produced by 11 commercial AI scribe tools significantly lower than notes written by 18 human clinicians
The notes written with AI scored lower in all 10 quality domains the graders assessed, with the largest deficits between human and AI-generated notes in thoroughness, organization and usefulness.
“Although ambient AI scribes hold promise for reducing clinician burden, independent, vendor-neutral evaluations of note quality are essential before large-scale clinical deployment,” the study says.
Potential errors raise malpractice risk
AI models are largely less-than-reliable notetakers because they operate via prediction, generating outputs by selecting the statistically most likely next word or character based on prior context.
Because it’s based on probability, the outputs are unstable. If a doctor were to use the same AI scribe for the same clinical visit, it would produce different notes each time.
That makes it far more difficult to audit than traditional software, which fails in predictable rather than unpredictable ways, Satterfield said.
AI scribes are especially prone to a number of mistakes that raise the risk of medical malpractice, experts say.
These include missing clinical information discussed during a visit, transcribing medical terminology incorrectly, fabricating information about a patient to provide an answer in an EHR template or filling in an information gap — often called hallucinating.
They may also omit non-verbal observations, such as facial expressions or tone, misinterpret vague statements, drop the context behind a clinical decision or introduce racial bias.
Even worse, AI scribes won’t notify the clinician when such an error occurs.
For example, if a patient says something unclear, an AI scribe will resolve the ambiguity silently rather than inform the provider. A human, on the other hand, would be more “comfortable raising a question,” said Jennifer Geetter, a partner at McDermott, Will & Schulte.
Accuracy can also degrade over time.
“It’s like a knife that gets dull,” Geetter said.
Although providers should review, approve and sign off on AI-assisted documentation, they may spend less time and effort reviewing notes as reliance on the scribes grows, according to the Texas Medical Liability Trust, a malpractice insurer. Providers could rubber-stamp notes without critical review, assume all important information was captured or avoid thinking critically about what was documented.
In fact, nearly 9 in 10 physicians worry that using AI will lead to skill loss, especially among those early in their careers, according to the AMA.
How providers can limit their liability
Fortunately, hospitals and health systems can take steps to limit the liability risks associated with AI scribes.
Experts recommend starting with a pilot to ensure there are no major issues before deploying the technology systemwide.
Other precaution measures include:
- Approving products centrally rather than leaving the choice to individual clinicians.
- Including AI scribe use in consent forms and procedures.
- Establishing strict review protocols by treating notes generated by an AI scribe as a draft the clinician must verify before signing.
- Setting documentation timetables, so notes get reviewed while the visit is still fresh in the clinician’s mind.
- Training staff on AI use and documentation, with refreshers whenever the system is updated.
- Using safeguards built into EHR systems, such as prompts to confirm medications, dosages and allergies.
- Auditing notes on an ongoing basis, including after the pilot ends, to catch accuracy drift.
Ultimately, however, the simplest precaution is reminding providers that they’re responsible for patient care, even if technology can make it easier.
“You need to think of AI scribing as being a copilot, not the pilot, not autopilot,” Satterwhite said.
