“Overall, it cuts both ways: there are amazing opportunities to relieve some of the pressures in the system, such as administrative work and burnout, but I do have concerns”
Jan Marin,
Gluckstein Lawyers
“[Tech manufacturers] should be held responsible where the circumstances warrant it. A public or regulator-facing registry of what AI tools are being used, how they’ve been tested, and what complaints have been made would be an important safeguard for patient safety”
Pinta Maguire, Gluckstein Lawyers
“We don’t want emerging tech to fail – it’s a great opportunity to save lives – but we want it done properly and safely. The legal system provides that check and balance”
Charles Gluckstein, Gluckstein Lawyers
In Partnership with
AI in healthcare: legal challenges and patient safety
AI is already embedded in Canadian healthcare, reshaping diagnosis and documentation, while regulation lags. Plaintiff-side med mal lawyers warn of rising risks – and outline urgent safeguards to protect patients and the public
Read on
Charles Gluckstein
Gluckstein Lawyers
Pinta Maguire
Gluckstein Lawyers
Jan Marin
Gluckstein Lawyers
Industry experts
HOW FAST is AI advancing? So fast that even its creators struggle to quantify the pace. What is certain, however, is that it’s already rapidly transforming patient care while outpacing Canada’s legal and regulatory safeguards.
Experts from Gluckstein Lawyers, one of Ontario’s premier medical malpractice firms, discussed the emerging field in a recent roundtable. Managing partner Charles Gluckstein was quick to frame the issue.
“The CEO of Perplexity AI always says one year of AI development equals 10 years of human progress,” he said. “What we talk about today, by next year will be totally different.”
“Overall, it cuts both ways: there are amazing opportunities to relieve some of the pressures in the system, such as administrative work and burnout, but I do have concerns,” Marin said. “That skin-care technology, for example; depending upon skin tone it’s not as effective. Do clinicians realize the limitations of the tools they’re using? Some of this is going to slip through the cracks.”
Senior counsel Pinta Maguire underscored that “ultimately, responsibility for the output falls to the physician.” Clinicians can’t treat AI as a replacement for their own judgement, both from a patient safety perspective and a knowledge erosion perspective. While they should review AI’s suggestions for possible diagnoses, “at least for the foreseeable future, there must be a ‘human check mark’ at the end of the process,” she said.
Marin agreed, noting that the real complexity is emerging around the standard of care. If a physician uses their clinical judgement but relies upon AI to support their decision, and AI gets it wrong, Marin predicts the defence would be along the lines of, “If AI couldn't catch it, how did you expect a human mind to?”
From note-taking and generating electronic medical records to triaging patients and creating referral networks, AI is already embedded in the healthcare system. Hospitals are integrating these tools into enterprise-wide systems, clinics are using them to streamline follow-up, and individual physicians are adopting AI assistants to help draft records and stay on top of growing administrative demands. Expanding from there, many positives are emerging from the steady march of innovation.
For example, AI systems draw on data sets consisting of millions of radiology scans, far beyond any individual physician’s experience, to help interpret images and guide diagnosis. There’s also a technology that can assess people’s skin – think moles, freckles, or blemishes – and flag anything concerning.
Another bright spot is what Jan Marin, senior associate at Gluckstein Lawyers, called “a legal tickler system.” It’s a tool that assists with outside reviews of hospital files and raises the red flag with clinicians in the background if there’s a miss or something that requires further investigation.
“That’s going to be a difficult thing to wrestle with,” she concluded, adding that another major anticipated challenge is finding the right kinds of experts to support a case – people who have a grasp on these ever-evolving, sophisticated technologies and can drill down to explain them to a judge or jury.
But Gluckstein warned that soon it may be a challenge to find experts who fit the bill. Even the creators of the technology can’t explain how it’s working, he warned. These technologies are making their own decisions, coming up with responses that can’t be explained by the humans behind them, and teaching themselves new skills.
“It’s going to change the landscape of how we define an
individual because these AI entities will be acting on their own,” Gluckstein said. “The doctor will say, ‘I didn’t train this device to do that. It just did it.’”
The stakes are as high as they are unclear, but one thing is certain: these questions are going to be legal battles, the trio agreed.
But when the problem lies in the design itself, the focus shifts. A design flaw could lead to class actions or mass tort cases, which may still involve hospitals but will largely focus on manufacturers. Maguire pointed to social media litigation in the US, where end users are suing the creators of a digital product that’s using an algorithm nobody understands but is doing harm. She predicts patients may follow suit under negligence law’s joint and several liability.
Marin tied that risk directly to the opaque way many AI products are built and trained. How the products function is often proprietary, including what data sets they rely on. Her warning was blunt: “Garbage in, garbage out.”
That expression essentially means that the quality of the
information the AI is utilizing informs how well it works. If clinicians don’t have a fundamental understanding of it, can they fully rely upon it? In her view, that combination of black-box systems and widespread deployment sets the stage for flawed tools to harm many patients in similar ways.
Marin was candid about the strategic trade-offs plaintiff counsel will face when deciding whether to bring in product defendants. It’s possible that a whole defence could be product liability, meaning not naming the manufacturer in the claim is a legal risk. Overall, complexity is increased dramatically by bringing in the product issues.
“If we can argue the practitioner relied upon AI blindly and it’s a drug interactions or imaging issue, for example, we can get clinician responsibility,” Marin said. “But if we’re talking about a surgical context where the robot is actually performing the surgery with a physician supervising, that’s more challenging. When technology fails, we already look beyond the healthcare providers, and we will continue to do that. We’re well supported in our firm to manage it.”
Regulation playing catch-up – and building real safeguards Negligence and product law may be able to stretch to cover AI, but the same can’t be said for Canada’s regulatory framework. Though currently in the works, no formal AI act exists – unlike in other jurisdictions, such as the EU.
Gluckstein noted that leading hospitals are already testing AI tools at the cutting edge, using large data sets and robotics to improve outcomes. But there will soon be litigation that tests the efficacy of the technology.
“Only then will regulatory legislation come out as to the proper use and misuse, but it will always be behind, especially with the way things are accelerating,” he added.
Maguire sees that lag in day-to-day practice. She described regulatory oversight as “a huge gap,” with AI- enabled products being deployed “without a lot of surveillance by the people in charge of keeping the public safe.”
Governments, she said, are going to be playing catch-up with what’s happening in the market. In that vacuum, she expects physician organizations to push for greater oversight, both to protect their members from exposure and to ensure the tools being sold into hospitals are properly tested.
For Gluckstein, the civil justice system itself is an essential part of the safety net, particularly when technology companies try to limit public accountability. With patient safety on the line, innovation doesn’t come at any price.
“Tech companies would love to move everything to an arbitration system; they don’t want punitive damages or any repercussions that stop their progress,” Gluckstein explained. “Plaintiff-side lawyers are the safeguards; we’re the backstop. We hold companies to task. We don’t want emerging tech to fail – it’s a great opportunity to save lives – but we want it done properly and safely. The legal system provides that check and balance.”
Marin drew a parallel with fertility law, another space where technology often races ahead of formal rules. There, she said, clients frequently tell her, “I don’t want this to happen to somebody else – how can we prevent it?” In her experience, real change comes from both the top down and the bottom up.
On the bottom-up side, she pointed to the role of insurers as agents of change: these powerful companies can simply refuse to insure risky practices, or drive premiums through the roof unless clients disclose what technologies they’re relying on. That kind of economic pressure can force regulators to act, whereas top down looks at the formal regulatory level.
“Health Canada should have the same type of regime they do for pharmaceuticals,” Marin said, which would require companies to have technology licensed before use and include mandatory reporting.
“Just like vaccinations, if there are any adverse consequences, Health Canada and the technology manufacturer must be made aware,” she argued. “There’s no way to improve if they don’t know what’s actually happening.”
Agreeing that there’s lots of room for the government to make inroads on safety, Maguire would also like to see contractual and statutory levers used more aggressively. She argued that hospital vendor contracts should provide real transparency on indemnity and responsibility, and from a regulatory perspective she would love to see governments ban sweeping indemnities that let manufacturers off the hook.
“They should be held responsible where the circumstances warrant it,” she said. “A public or regulator-facing registry of what AI tools are being used, how they’ve been tested, and what complaints have been made would be an important safeguard for patient safety.”
Professional regulators have a critical role as well. In Ontario, the College of Physicians already has detailed policies on controlled substances, boundaries, and other core practice issues; it’s crying out for one on technology in healthcare that outlines how AI can be used and what must be disclosed to patients.
“The bottom line is there are many examples throughout history – pharmaceuticals and the fertility space are two – where technology goes faster than bureaucracy,” Marin summed up. “We all play a part in ensuring patient safety. Change will come at the urging of different directions.”
Want to hear the whole conversation? Listen to the roundtable discussion now.
How is AI leveraged in Canadian healthcare?
use AI for administrative purposes (up from 11% in the 2024 report)
For over 60 years Gluckstein Lawyers has been a beacon of hope and expert guidance for individuals and families navigating the complexities of personal injury law. With an unwavering commitment to justice, the firm has earned its place as one of Canada’s leading personal injury law firms. Our expertise extends to all areas of personal injury, including, but not limited to, medical malpractice, motor vehicle accidents, birth trauma, sexual abuse, LTD claims, and class actions/mass tort claims.
Gluckstein Lawyers was established with the foundational principle of putting people first. From our inception, our firm has prioritized advocacy for those who need it most – individuals impacted by life-changing injuries, trauma, or illness. This dedication stems from a deep understanding that behind every case is a person or family facing profound challenges in the aftermath of unforeseen circumstances.
Charles Gluckstein, managing partner at Gluckstein Lawyers, has been a leader in personal injury law since being called to the Ontario bar in 1999. Specializing in catastrophic injury claims, medical negligence, and disability law, he is recognized as a certified specialist in civil litigation. Gluckstein is celebrated for his innovative use of technology, thought leadership, and dedication to achieving maximum recovery for clients. A past president of the Ontario Trial Lawyers Association, he has received numerous accolades, including the Lexpert Zenith Award. Gluckstein is committed to full-circle care, supporting clients through recovery while advancing the legal profession with compassion and expertise.
Gluckstein Lawyers
Charles Gluckstein
Pinta Maguire, senior counsel at Gluckstein Lawyers, is an accomplished trial lawyer with expertise in medical negligence cases such as birth injuries, surgical errors, and delayed diagnoses. Her background as former defence counsel for physicians provides her with a unique perspective in advocating for injured patients. Maguire also represents plaintiffs in class actions, addressing systemic negligence and seeking justice. As an active member of the Ontario Trial Lawyers Association and the Holland Group, she works to advance plaintiffs’ rights and fair resolutions. Recognized by Lexpert and Best Lawyers in Canada, Pinta is dedicated to guiding clients with compassion and expertise.
Gluckstein Lawyers
Pinta Maguire
Jan Marin is a senior associate at Gluckstein Lawyers, focusing on medical malpractice and birth injury cases. Known for her compassionate advocacy, she is deeply involved in advancing plaintiffs’ rights as a board member of the Ontario Trial Lawyers Association, where she contributes to key committees and publications. Marin also supports families through her role as chair of the Canadian Premature Babies Foundation and volunteers with Pro Bono Ontario, offering legal assistance to underserved communities. Recognized by Best Lawyers in Canada and Lexpert, she combines legal expertise with a personal commitment to helping clients navigate complex and emotional legal challenges.
Gluckstein Lawyers
Jan Marin
In Partnership with
Fighting for
the customer
The customer owned a bank saw a huge boost after the Hayne Royal Commission. One year on and their market share is growing as customer continue to see their value.
Read on
Stewart Saunders
Heritage Bank
Darren McLeod
Beyond Bank
Fernando Lemos
Bank Australia
Industry experts
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Bank Australia
Fernando Lemos
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Beyond Bank
Darren McLeod
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Velit egestas vel ornare pellentesque ridiculus. Mauris tempor augue quis mattis suspendisse feugiat commodo posuere. Faucibus massa adipiscing nullam elit, ac vel accumsan. Phasellus eget ac dignissim fermentum ac placerat elit, metus. Nulla porttitor ante egestas molestie quis quam. Pharetra magna sit mauris tellus gravida rutrum libero sit. Justo orci cras euismod proin massa lorem ut. In non tellus phasellus faucibus ullamcorper nullam odio dui et.
Heritage Bank
Stewart Saunders
In Partnership with
Fighting for
the customer
The customer owned a bank saw a huge boost after the Hayne Royal Commission. One year on and their market share is growing as customer continue to see their value.
Read on
Stewart Saunders
Heritage Bank
Darren McLeod
Beyond Bank
Fernando Lemos
Bank Australia
Industry experts
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Tellus in penatibus condimentum malesuada ante vulputate nisi, arcu leo. Amet urna sapien purus vestibulum fermentum a. Cursus metus massa donec sed varius. Nunc enim sit morbi lacus, molestie et nunc. Nullam sed facilisi id malesuada. Ante purus velit, quam scelerisque ultrices scelerisque donec.
Velit egestas vel ornare pellentesque ridiculus. Mauris tempor augue quis mattis suspendisse feugiat commodo posuere. Faucibus massa adipiscing nullam elit, ac vel accumsan. Phasellus eget ac dignissim fermentum ac placerat elit, metus. Nulla porttitor ante egestas molestie quis quam. Pharetra magna sit mauris tellus gravida rutrum libero sit. Justo orci cras euismod proin massa lorem ut. In non tellus phasellus faucibus ullamcorper nullam odio dui et.
Beyond Bank
Darren McLeod
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Tellus in penatibus condimentum malesuada ante vulputate nisi, arcu leo. Amet urna sapien purus vestibulum fermentum a. Cursus metus massa donec sed varius. Nunc enim sit morbi lacus, molestie et nunc. Nullam sed facilisi id malesuada. Ante purus velit, quam scelerisque ultrices scelerisque donec.
Velit egestas vel ornare pellentesque ridiculus. Mauris tempor augue quis mattis suspendisse feugiat commodo posuere. Faucibus massa adipiscing nullam elit, ac vel accumsan. Phasellus eget ac dignissim fermentum ac placerat elit, metus. Nulla porttitor ante egestas molestie quis quam. Pharetra magna sit mauris tellus gravida rutrum libero sit. Justo orci cras euismod proin massa lorem ut. In non tellus phasellus faucibus ullamcorper nullam odio dui et.
Heritage Bank
Stewart Saunders
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Velit egestas vel ornare pellentesque ridiculus. Mauris tempor augue quis mattis suspendisse feugiat commodo posuere. Faucibus massa adipiscing nullam elit, ac vel accumsan. Phasellus eget ac dignissim fermentum ac placerat elit, metus. Nulla porttitor ante egestas molestie quis quam. Pharetra magna sit mauris tellus gravida rutrum libero sit. Justo orci cras euismod proin massa lorem ut. In non tellus phasellus faucibus ullamcorper nullam odio dui et.
Bank Australia
Fernando Lemos
AI no longer a hypothetical
Published April 13, 2026
52%
use AI to process and analyze medical data
60%
use AI to personalize treatments
47%
use AI to diagnose conditions
41%
AI use in Canadian healthcare organizations jumped to 87% in 2025 from 72% in 2024
A dramatic shift
Source: SOTI, Healthcare's Digital Dilemma: Calculated Risks and Hidden Challenges Exposed
The real battleground: reshaping the standard of care
Negligence as it is currently defined is broad enough to encompass most of the legal issues that may arise from the use of AI in healthcare settings. Causation will always be complicated, but it’s the same analysis whether human or machine error. Did the clinician’s choices – including how they used or misused AI – cause the outcome?
While most AI-related claims will start as familiar negligence cases against hospitals and clinicians, the panel was clear that product liability – and with it, class actions and mass torts – is close behind. For Maguire, the starting point is who supplies and controls the technology.
“If it’s equipment being supplied by the hospital, it’s primarily going to be a hospital issue,” she said. “They are typically the purchasers of those very expensive pieces of equipment, and it’s their responsibility to maintain them.”
Product liability and class action/mass torts potential
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Source: SOTI, Healthcare's Digital Dilemma: Calculated Risks and Hidden Challenges Exposed
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