Health care services: artificial intelligence.

1714.48.

 (a) For purposes of this section, the following definitions shall apply:

(1) “Artificial intelligence” means an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.

(2) (A) “Automated decision system” means a computational process derived from machine learning, statistical modeling, data analytics, or artificial intelligence that issues simplified output, including a score, classification, or recommendation, that is used to assist or replace human discretionary decisionmaking and materially impacts natural persons.

(B) “Automated decision system” does not include a spam email filter, firewall, antivirus software, identity and access management tools, calculator, database, dataset, or other compilation of data.

(3) “Clinical decision support system” means an artificial intelligence system that produces a prediction, classification, recommendation, evaluation, or analysis that aids clinical decisionmaking related to timing of care, diagnosis, or treatment. It does not include booking, canceling and rescheduling appointments, appointment reminders, patient education and previsit materials and preparation, and payment processing, to the extent the independent performance of these activities by the system does not require a professional license.

(4) “Generative artificial intelligence” has the same meaning as defined in Section 1339.75 of the Health and Safety Code.

(b) In an action against a defendant who developed, modified, selected, or deployed a clinical decision support system that is alleged to have caused harm to the plaintiff, it shall not be a defense, and the defendant may not assert, that the failure of a licensed health care professional or other health care worker to override an output of the clinical decision support system is a superseding cause severing the defendant’s liability for the alleged harm.

(c) This section does not limit or preclude a defendant from presenting either of the following:

(1) Any other affirmative defense, including evidence relevant to causation or foreseeability.

(2) Other evidence relevant to the comparative fault of any other person or entity.

(3) Evidence that the defendant took reasonable precautions to prevent harm, including providing clear and conspicuous disclosures and disclaimers regarding the intended use, scope, known risks, and limitations of the system to the health facility, clinic, physician’s office, or office of a group practice.

(d) This section does not apply to an action described in Section 340.5 of the Code of Civil Procedure against a person providing direct patient care who is licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code or licensed pursuant to the Osteopathic Initiative Act or the Chiropractic Initiative Act.

2820.

 For the purposes of this article, the following definitions shall apply:

(a) “Artificial intelligence” means an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.

(b) (1) “Automated decision system” means a computational process derived from machine learning, statistical modeling, data analytics, or artificial intelligence that issues simplified output, including a score, classification, or recommendation, that is used to assist or replace human discretionary decisionmaking and materially impacts natural persons.

(2) “Automated decision system” does not include a spam email filter, firewall, antivirus software, identity and access management tools, calculator, database, dataset, or other compilation of data.

(c) “Clinical decision support system” means an artificial intelligence system that produces a prediction, classification, recommendation, evaluation, or analysis that aids clinical decision-making related to timing of care, diagnosis or treatment. It does not include booking, canceling and rescheduling appointments, appointment reminders, patient education and pre-visit materials and preparation, and payment processing, to the extent the independent performance of these activities by the system does not require a professional license.

(d) “Generative artificial intelligence” has the same meaning as defined in Section 1339.75 of the Health and Safety Code.

2821.

 (a) It is the public policy of the State of California that a worker providing direct patient care be free to use their professional judgment to make assessments and decisions within their scope of practice as appropriate for their patients.

(b) (1) An employer shall not retaliate or discriminate against a worker providing direct patient care using their professional judgment to make an assessment or decision within their appropriate scope of practice based solely on the worker’s override of, or reliance on, the output of a clinical decision support system.

(2) (A) This subdivision does not affect a worker’s duty to do any of the following:

(i) Meet the applicable standard of care.

(ii) Act within their scope of practice as outlined in Division 2 (commencing with Section 500) of the Business and Professions Code.

(iii) Comply with Section 125.6 of the Business and Professions Code.

(iv) Exercise independent professional judgment in providing direct patient care.

(v) Follow standard operating procedures or other written policies established by the employer or by a California governmental department or agency.

(vi) Comply with Section 70215 of Title 22 of the California Code of Regulations.

(vii) Comply with the bylaws, rules, and regulations described in Section 70703 of Title 22 of the California Code of Regulations.

(B) A policy, procedure, or protocol that requires a worker to accept, defer to, or refrain from overriding the output of a clinical decision support system is not a duty described in this paragraph.

(3) (A) In enforcing this section, the Labor Commissioner shall determine whether an employer retaliated or discriminated against a worker in violation of paragraph (1). The Labor Commissioner may consider evidence relevant to the reasons the employer took the action alleged to be retaliation or discrimination, including evidence supporting alternate reasons for the action, such as an alleged failure by the worker to satisfy a duty described in paragraph (2).

(B) This section does not require the Labor Commissioner to adjudicate or make a final determination of whether a worker met or failed to meet a duty described in paragraph (2). A determination under this section is not determinative of any legal action for professional negligence or malpractice or disciplinary action against a professional license. This section does not limit the authority of an appropriate licensing authority or a court under existing law.

(c) A worker who is subject to retaliation or discrimination in violation of this article has the right under this article to file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against the worker.

(d) The Labor Commissioner shall enforce this article, including investigating an alleged violation, ordering appropriate temporary relief to mitigate a violation or maintain the status quo pending the completion of a full investigation or hearing through the procedures set forth in Section 98, 98.3, 98.7, 98.74, or 1197.1, issuing a citation against an employer who violates this article, and filing a civil action. If a citation is issued, the procedures for issuing, contesting, and enforcing a judgment for a citation and civil penalty issued by the Labor Commissioner shall be the same as those set out in Section 98.74 or Section 1197.1, as applicable.