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AI & Healthcare

15 April 2024
  • Dr. Mohan Dewan assisted by Adv. Shubham Borkar

AI is already making significant strides in various aspects of healthcare delivery and management in India. Use cases include the automation of administrative processes, medical image analysis, clinical decision support, and drug discovery. For example, AI-powered diagnostic tools are helping healthcare providers in remote areas improve disease detection and treatment outcomes, while AI-driven drug discovery platforms are accelerating the development of novel therapeutics for prevalent diseases such as tuberculosis and malaria.

However, alongside these promising developments come inherent risks and challenges that must be addressed to ensure the responsible deployment of AI in healthcare.

Healthcare AI Use Cases
Artificial intelligence (AI) has become increasingly integrated into various aspects of the healthcare sector, spanning from patient care to medical decision-making and drug research. Noteworthy applications currently include streamlining the prior authorization process, aiding in diagnosis and clinical decision support, and advancing drug development and discovery. However, alongside these advancements come significant considerations regarding potential risks.

Prior Authorization: In efforts to enhance efficiency and reduce costs, numerous companies employ algorithms to streamline the prior authorization procedure. AI holds promise in automating insurance claim approvals, suggesting lower-cost alternatives, or directing claims to clinical staff for further assessment. While the prior authorization process is ripe for AI intervention due to its repetitive nature, legal concerns have surfaced. Questions arise regarding the fairness of claim denials by AI and the extent to which AI diminishes physicians' discretion. The American Medical Association, a leading physician advocacy group, has recently advocated for increased oversight of AI utilization in prior authorization processes.

Diagnosis and Clinical Decision Support: AI plays a pivotal role in assisting healthcare providers with diagnosis and medical decision-making. By analyzing medical images and patient data, AI algorithms aid in disease identification, treatment selection, and accurate compilation of examination summaries. AI tools have demonstrated proficiency in detecting abnormalities such as hemorrhaging from CT scans, diagnosing skin cancer from images, and identifying indicators of heart disease from standard CT scans. As these tools evolve, regulatory scrutiny is anticipated, focusing on aspects such as model training methodologies, potential biases, and malpractice liability concerns among physicians reluctant to rely solely on AI recommendations.

Drug Development and Discovery: In the pharmaceutical sector, algorithms are increasingly employed to evaluate potential drug combinations before conducting clinical trials. However, there exists a tangible risk of manipulation, where drug developers or AI vendors may alter AI outputs to exaggerate efficacy or manipulate data. Historical instances of clinical trial fraud underscore this concern. To address these challenges, compliance professionals and AI users must ensure the accuracy, fairness, and transparency of AI tools. Key considerations include understanding the vendor's AI governance policies, the training data used, measures to prevent bias, and safeguards for patient information confidentiality. Mandating AI vendors to disclose information about software development processes, bias mitigation measures, data handling practices, how the product was validated & what use cases the tool was specifically designed for and whether the output from the software is a prediction, classification, recommendation, evaluation, analysis, or something else is essential for fostering trust and accountability.

Legal and Regulatory Considerations

  • Indian Digital Personal Data Protection Act 2023 (DPDPA):
    The DPDPA is India's comprehensive data protection legislation aimed at regulating the processing of personal data, including healthcare data. It mandates the protection of sensitive personal data, including health and genetic data, through stringent measures such as data minimization, purpose limitation, and consent requirements.  Organizations handling healthcare data, including those using AI applications, must comply with the DPDPA's principles and obligations to ensure lawful and ethical processing.
  • Healthcare Data Protection Laws:
    In addition to the DPDPA, healthcare data in India is subject to specific laws and regulations such as the Health Insurance Portability and Accountability Act (HIPAA) and the Clinical Establishments (Registration and Regulation) Act. These laws govern the collection, storage, and sharing of healthcare information, imposing strict requirements to safeguard patient privacy and confidentiality.
  • Ethical Guidelines for AI in Healthcare:
    Regulatory bodies like the Indian Council of Medical Research (ICMR) and the National Health Authority (NHA) have issued guidelines on the ethical use of AI in healthcare. These guidelines emphasize transparency, accountability, and fairness in AI systems, urging healthcare providers to ensure that AI algorithms are clinically validated and do not perpetuate biases.
  • Regulatory Approval for AI-based Medical Devices:
    AI-driven medical devices and software applications are subject to regulatory approval by the Central Drugs Standard Control Organization (CDSCO) under the Medical Devices Rules, 2017. These regulations require manufacturers to demonstrate the safety, efficacy, and quality of AI-based medical products through clinical trials and regulatory submissions.
  • Data Localization Requirements:
    The DPDPA may impose data localization requirements, mandating that certain categories of sensitive personal data, including healthcare data, be stored and processed within India. Compliance with data localization requirements may impact the deployment of cloud-based AI solutions and cross-border data sharing in healthcare.
  • Liability and Accountability:
    Organizations deploying AI in healthcare must consider liability and accountability issues arising from AI-related errors or biases. The DPDPA imposes obligations on data controllers and processors to implement appropriate security measures and be accountable for any data breaches or misuse.
  • International Standards and Best Practices:
    While India has its own regulatory framework, international standards and best practices in AI ethics and data protection, such as the OECD AI Principles and the EU General Data Protection Regulation (GDPR), also influence regulatory considerations in the country. Adhering to global standards can enhance trust and facilitate international collaborations in healthcare AI research and innovation.
Intellectual Property Rights in AI Healthcare
Intellectual Property Rights (IPR) play a significant role in shaping innovation and development in the field of AI healthcare. Patents, copyrights, and trade secrets provide legal protections that incentivize companies and researchers to invest in AI-driven healthcare solutions while safeguarding their innovations from unauthorized use or replication.
  • Patents: Grant exclusive rights to inventions for a limited period, incentivizing companies and researchers to invest heavily in AI-driven healthcare solutions. Patent protection allows them to recoup their investment and generate profits, fostering continuous research and development.
  • Copyrights: Protect the original expression of ideas, including software code used in AI algorithms for medical diagnosis or treatment planning. Copyright ensures developers are fairly compensated for their work and discourages unauthorized copying that could hinder innovation.
  • Trade Secrets: Shield confidential information that gives a company a competitive advantage. Protecting trade secrets encourages companies to invest in creating unique AI solutions without fear of immediate imitation.
Challenges and Considerations
  • Patentability of AI-Generated Inventions: Current patent laws often struggle to recognize AI itself as an inventor, leading to uncertainty regarding ownership rights. Addressing this ambiguity is essential to incentivize AI innovation in healthcare.
  • Data Ownership and Sharing: Balancing data ownership with the need for collaboration to develop better AI solutions is a critical challenge. Clear guidelines for data usage and sharing are necessary to foster innovation while respecting privacy rights.
  • AI and Copyright Infringement: As AI generates creative content, questions arise regarding copyright ownership and protection. Clarifying copyright laws in the context of AI-generated works is crucial to ensure proper attribution and protection of intellectual property rights.
The Way Forward
  • Adapting IPR Laws: Policymakers and legal frameworks need to evolve to accommodate the unique aspects of AI-driven innovation in healthcare. This may involve creating new categories of patentable subject matter or revising data ownership regulations to address emerging challenges.
  • Collaboration and Standardization: Industry stakeholders must collaborate on establishing clear guidelines for AI development and data sharing in healthcare. Standardization can help navigate the IPR landscape and accelerate progress while ensuring regulatory compliance.
  • Ethical Considerations: Ethical principles should guide the development and deployment of AI technologies in healthcare. Stakeholders must prioritize fairness, transparency, and accountability to build trust and ensure responsible use of AI in patient care.
In conclusion, the integration of AI into the healthcare industry presents both opportunities and challenges for stakeholders in India and globally. By addressing legal and regulatory considerations, navigating the complex landscape of intellectual property rights, and prioritizing ethical principles, stakeholders can harness the transformative potential of AI to improve patient outcomes and advance healthcare delivery.