Canadian Lawyer

September 2022

The most widely read magazine for Canadian lawyers

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44 www.canadianlawyermag.com As AI expands in health care, regulation and liability will evolve with the technology Artificial intelligence- powered liability EARLY IN Brian Moher's legal career, he acted on a case where a machine substituted for a medical decision-maker, leading to a record- breaking fine and jail time for the practitioner. A Hamilton optician, Bruce Bergez, ran a chain of optical stores called Great Glasses. The business offered free eye tests, using a technology that measured refractive error in the customer's vision and generated eyeglass prescriptions. The College of Optometrists went after Bergez because dispensing correc- tive lenses via a computer-generated prescrip- tion rather than a prescription from an optometrist or physician violated Ontario's Regulated Health Professions Act (RHPA). Despite a Superior Court judgment ordering Bergez and his companies to comply with provincial law, he continued the illegal business practice, growing the operation from three stores to more than twenty. After he appealed a contempt order unsuccessfully and was denied leave to the Supreme Court of Canada, Bergez's non-compliance earned him a $17-million fine. Bergez appealed, again unsuccessfully. Seven years after the initial court order and still non-compliant, he served one year in prison for civil contempt. Section 27(2) of the RHPA lists the "controlled acts" that are the exclusive domain of doctors, nurses, and other health noses, raises the issue of how the RHPA now applies, says Moher, who works as plaintiff 's counsel in medical negligence actions at Gluckstein Lawyers. More than any other area, medicine must keep up with technological advance- ment, and doctors are obligated to ensure the "optimum standard of care," he says. Yet, asks Moher, what degree of judgment, observation, and inspection is still required from the professional when relying on these sophisticated technologies? "We are in an era when we seem to be accepting, collectively, that machines may be better equipped to perform these tasks. That does leave a question as to, if we are engaging care providers. These include delivering a baby, diagnosing an illness, and prescribing or dispensing eyeglasses other than simple magnifiers. Section 27(1) states that no one other than a member authorized by a health profession act, or a person delegated to by such a member, can perform a controlled act. Contrasting the Great Glasses saga with current technological advances, through which artificial intelligence and machine- learning tools are capable of things like reading medical images and generating diag- LEGAL REPORT MEDICAL "We are in an era where we seem to be accepting, collectively, that machines may be better equipped to perform these tasks" Brian Moher, Gluckstein Lawyers

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