Algorithms in Private Health Insurance Litigation: The Precursor to AI?, Bloomberg Law, contributors Abbye E. Alexander, Esq.; Christopher J. Tellner,Esq.; & Henry E. Norwood, Esq., 8-20-2024

The law rarely keeps pace with advancements in technology. This certainly holds true with computer algorithms and artificial intelligence (AI). Many industries integrate these technologies into existing practices with mixed results for businesses and consumers. One industry that is increasingly using algorithms and AI is the health insurance industry. Because health care insurance claims are widespread across the nation, insurers can be inundated with claims for coverage from their members. Please see link for full article

Conclusion

Even in the early stages of the ongoing algorithm cases, the common allegations and defenses to these claims are apparent. When ERISA plans are involved, state statutory and common law causes of action may be subject to preemption. Plaintiffs would need to allege specific plan terms tying the use of algorithms or AI to a plan requirement–likely a requirement providing for review by a physician or other health professional. Further, plaintiffs may face difficulties proving an algorithm or AI was actually used to determine their claims. These issues are likely to appear in algorithm and AI cases moving forward. Continued monitoring of these lawsuits and newly filed lawsuits will provide plaintiffs and defendants with a road map to litigate their claims.

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