머신러닝 인공지능과 인간전문직의 협업의 의미와 법적 쟁점: 의사의 의료과실 책임을 사례로
Meaning of Partnership between Machine Learning Artificial Intelligence and Legal Issues: Case of Physician's Liability in the Medical Malpractice
The advent of machine learning artificial intelligence(hereafter “AI”) makes partnership between AI. and human professionals a reality in those areas that have long been regarded as a monopolistic area of ??human professionals and as the recent IBM Watson shows, the field of medicals is ahead of this commercialization trend.* Presiding Judge of Seoul Central District Court However, there is a clear distinction in problem solving approach between machine learning AI and human professionals, where machine learning AI leads those outcomes by calculation of probability by black-box process and recognition of hidden pattern based on big data while human professionals lead those outcomes by the plausibility based on explanations and application of abductive reasoning based on his or her own experience. Above it, the technical limitations of AI in understanding human language, and the existence of differences in practice between AI developing and using countries and other factors increase the possibility of collision between human professionals and machine learning AI. In this situation, even if human professionals and machine learning AI cooperate in partnership, the role of machine learning AI is limited to assist human professionals to prevent mistakes and lower the related costs unlike autonomous vehicles where human does not works as drivers practically anymore and human's position changes from drivers to consumer actually so as to induce the discussion of the reduction in legal liability naturally As a concrete example, the physician's liability in medical malpractice can not be changed largely even in partnership with machine learning AI when considering the status of the physician who is protected by law as sole provider of medical service and the patient's self-determination right that can only be established based on the faithful explanation duty of the doctor, because status of physician assisting AI is medical device at best. Rather, in view of the existing court precedents that find physician liable in malpractice only when there is a possibility of foreseeability of the bad outcome in physician's diagnosis and the choice of treatment, partnership with machine learning AI in the current stage of machine learning development enlarge physician's liability expecially when diagnosis of physician and machine learning AI is differed. However, in the future where machine learning AI will reach a considerable level, machine learning AI will afford a strong defense for the physician, and at that time real deliberation of legal responsibility to balance will rise. Partnership between machine learning AI and human professionals are becoming more and more reality in expectation of reduction of human error and cutting costs. In the current stage, where various possibilities for utilization and development are relatively open, it is better to adopt incremental regulation as commercialization steps rather than comprehensive regulation, and also the human professional group should improve the education and training system for the novice group whom will suffer from machine learning AI at large.
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