Software Malpractice in the Age of AI
Daniel L Tobey · 2018
Professional malpractice - the concept of heightened duties for those entrusted with special knowledge and crucial tasks - is rooted in history. And yet, since the dawn of the computer age, courts in the United States have almost universally rejected a theory of software malpractice, declining to hold software engineers to the same professional standards as doctors, lawyers, and engineers. What is changing, however, is the speed at which software based on artificial intelligence technologies is replacing the very professionals already subject to professional liability. Society has already decided (in some cases, millennia ago) that those tasks warrant special accountability; new to the analysis is which human is closest in line to the adverse event. As AI expands, the pressure for courts to go one level up the causal chain in search of human agency and professional accountability will mount. This essay analyzes the case law rejecting software malpractice for clues about where the doctrine might go in the age of AI, then discusses what technology companies can learn from the safety enhancements of doctors, lawyers, and other historic professionals who have adapted to such heightened legal scrutiny for years.