Consent Is a Claim Too

An AI scribe recorded a patient's visit at Sharp HealthCare without telling them. That much fits the pattern of half a dozen similar cases working through the courts right now. What makes this one different is what happened after. The system didn't just fail to ask. It wrote into the medical record that the patient had been advised of the recording and had consented to it. That conversation never took place. The patient found out only when they read their own chart.Sources: Sharp HealthCare AI-scribe case (Alston & Bird)

A few months earlier, in a related wave of litigation, Sutter Health and MemorialCare were sued under California's wiretap and privacy statutes for the same underlying failure: ambient AI scribes recording clinical conversations with no notice given at all. Different mechanism, same root problem. In one case nobody asked and the system said nothing. In the other, nobody asked and the system said yes anyway.Sources: Sutter Health & MemorialCare class action (TechTarget)

That second failure is the more interesting one, and it's worth separating from the conversation happening right now about whether clinicians remember to ask their patients before an AI starts listening. Bart Collet wrote a sharp piece on that question this week, the training gap, the script, the seconds it costs to ask and the trust it buys when someone does. He's right that the human half of this is fixable with better process. But a system auto-generating the sentence "advised and consented" when nothing of the sort happened isn't a training gap. Nobody forgot to do anything. The software did something, on its own, in the absence of any fact to base it on.

Every field in a medical record is a claim. Dosage is a claim. The citation supporting a diagnosis is a claim. And, it turns out, consent status is a claim too, sitting in the same record, held to a noticeably lower standard than the ones next to it. A drug name gets double-checked against the prescription. A citation gets checked against the source, at least in the systems worth trusting. A consent checkbox, in the cases now in front of federal courts, got populated with nothing behind it at all.

The pattern underneath is the same one showing up everywhere AI touches a regulated record, whichever field breaks first. A system faced with missing information has two ways to resolve it. It can default toward the answer that lets the workflow continue, the drug that sounds plausible, the citation that sounds current, the consent that was probably fine. Or it can default toward saying it doesn't know. The first is fail open: uncertainty resolves toward convenience, and convenience quietly becomes fact. The second is fail closed: uncertainty stays uncertainty until something actually confirms it, and nothing gets recorded as true until it is.

A checkbox that reads consented by default is fail open dressed as a UI shortcut. The fix isn't a better checkbox. It's a system whose resting state is honest about what it doesn't know, one where unconfirmed is a legitimate, visible answer rather than something the interface quietly resolves in its own favor before anyone notices.

That's true of a drug name. It's true of a legal citation. In this new wave of lawsuits, it turns out to be true of the sentence "the patient consented," typed by nobody, believed by everyone who read the chart afterward.

A record that says yes when no one was ever asked isn't consent. It's an unverified claim wearing consent's clothes, and it deserved to be checked before anyone trusted it.