AI, HIPAA and Ethics

Laws and regulations often fail to keep up with the pace of technology.  Such is the case with AI, which dental offices are using in various aspects of their operations, including communications, recordkeeping, and patient care decisions.   Although more guidance from Federal and State authorities is needed, the following are some considerations for dental offices before they implement AI in their practices:

1. Communications:  Some practices are using AI to handle calls from patients (e.g., real-time voice transcription, call highlights, automated call summaries and sentiment voice analysis).  Because patient calls to your office as well as patient calls to other clients of the AI-tool provider are often fed into the AI-tool itself and listened to by the AI-provider in order to improve the quality of service, it can raise potential Federal Wiretap Act, State law and HIPAA issues.  For example, in a class action lawsuit filed against Heartland Dental, LLC last year, the plaintiffs alleged that they were not informed about and did not consent to a third-party (i.e., “RingCentral AI”) listening in on calls and analyzing them with AI.  The following are some lessons from this case:

• Call Disclaimers:  Every AI-assisted call should begin with a clear disclaimer that the call is being recorded and may involve AI assistance. 

• Business Associate Agreements (BAA):  As required by HIPAA, your office must enter into a BAA with the AI vendor to address its data handling practices. 

• HIPAA Privacy Notice:  Consider updating your Notice to describe your office’s use of AI.  Some guidance from the Office for Civil Rights (OCR) would be helpful here. 

      2.  Recordkeeping:  Some practices use AI scribes to help record patient interactions and build the patient record.  The following are some considerations when using AI scribes:

• Proofread and edit, if necessary, all patient notes:  While AI is good and getting better, it is not perfect and can make mistakes when transcribing speech.  You are ultimately responsible for the patient record, so it is critical that you proofread any AI-generated clinical documentation before saving it as the final patient record.

• Inform Patients about the Use of AI Scribes:  Consider posting a notice in your office about the use of AI and discussing the activation of the AI scribe at the beginning of a patient visit.  
• Patient Care Decisions:  Some practices are using AI for functions such as screening, risk prediction, diagnosis, prognosis, clinical decision-making, and treatment planning, among others.  The following are some considerations when using AI for patient care decisions:

• Diagnostic errors:  Just like the AI recordkeeping tools, AI diagnostic tools can make mistakes.  Reliance on AI for diagnosis without proper clinician input can lead to errors due to misinterpretation by the AI algorithms or biases in the data used to train the AI.  AI can assist – but should never replace – professional judgment. 

• Bias and discrimination:  AI diagnostic tools that do not incorporate input from a wide- or diverse-enough sample size could lead to bias and wrong outcomes for certain populations.  (see, e.g., the OCR’s January 2025 guidance document entitled “Ensuring Nondiscrimination Through the Use of Artificial Intelligence and Other Emerging Technologies,” particularly Example #4 therein regarding pulse oximeters that are not sufficiently trained on representative populations that have been shown to overestimate blood oxygen levels in patients of color).  At a minimum, practices should obtain information from vendors about the input variables or factors included in their patient decision support tools.  

Sources: “Navigating the Risks of AI-Enhanced Dentistry,” The Dentist’s Insurance Company, June 27, 2025; “Ensuring Nondiscrimination Through the Use of Artificial Intelligence and Other Emerging Technologies,” Department of Health & Human Services – Office For Civil Rights, January 10, 2025; “AI Scribes Pose Liability Risks, Jeanne Varner Powell, JD, Mutual Insurance Company of Arizona, August 11, 2025; “Listen Up” if Your AI Policy Does Not Cover AI Recording Issues – Another Class Action Lawsuit Filed Over Third Party AI Recording Service,” James Gatto, Sheppard Mullin, 2025; Ontario MD Practice Hub Patient Consent Tool Kit (i.e., “AI-Scribe-Sample-Consent”).