Artificial intelligence (AI) holds great promise for improved health-care outcomes. It has been used to analyze tumor images, to help doctors choose among different treatment options, and to combat the COVID-19 pandemic. But AI also poses substantial new hazards. This Article focuses on a particular type of healthcare harm that has thus far evaded significant legal scrutiny. The harm is algorithmic discrimination.

Algorithmic discrimination in health care occurs with surprising frequency. A well-known example is an algorithm used to identify candidates for “high risk care management” programs that routinely failed to refer racial minorities for these beneficial services. Furthermore, some algorithms deliberately adjust for race in ways that hurt minority patients. For example, according to a 2020 New England Journal of Medicine article, algorithms have regularly underestimated African Americans’ risks of kidney stones, death from heart failure, and other medical problems.