Surgeons

Recently, James Ryan Morales from HealthAim reported on a new study at Children’s National Medical Center in Washington involving the Smart-Tissue Autonomous Robot (STAR) Project. In the study, a supervised autonomous robot performed soft-tissue surgery on a pig’s bowel, demonstrating that robots can now perform surgical operations with very minimal human supervision. It is, therefore, only a matter of time before fully autonomous surgical robots make their way into operating rooms across the country. And so, this begs the question: Will patients still be able to sue their human physicians for injuries allegedly sustained while under an autonomous surgical robot’s scalpel?

In my years as a product liability litigator specializing in pharmaceuticals and medical devices, I have deposed countless surgeons. Virtually all of them have testified that surgery is not an exact science. Rather, it is an art form founded on generally applicable principles. The rate of success is many times determined not only by how familiar a surgeon is with those generally applicable principles, but also by his or her level of experience and intellectual acuity. The consequences of decisions made in the operating room are seldom black and white, and there is rarely a stark delineation between actions meeting the recognized standard of care and those qualifying as medical negligence. Consequently, today’s medical malpractice laws exist in that grey space.

It is due to this lack of clarity that—in an effort to curtail frivolous claims, promote settlement, and generally reduce the cost of medical malpractice insurance—jurisdictions across the country have in place strict procedural requirements for suing physicians for medical malpractice. For example, Florida codified its procedural requirements in the Florida Comprehensive Medical Malpractice Reform Act, Chapter 766, Florida Statutes. Under the Act, before a patient can sue his or her doctor, he or she must first conduct a pre-suit investigation. That investigation involves giving notice to the subject physician of the intent to initiate litigation, and permitting the physician’s insurer to conduct informal discovery to assess its insured’s liability. If either party fails to follow the pre-suit notice, investigation and discovery procedures, the court may dismiss any claims or defenses.

And so what happens when the human element is removed from the equation and replaced by an autonomous robot that follows a carefully crafted algorithm based on what is generally recognized as the standard of care? And in what ways may the physician be implicated assuming that he or she simply stood by and watched while the surgery was being performed?

In short, though the theories advanced may change somewhat, medical malpractice claims will likely remain a viable option for many patients. For starters, assuming that a human physician recommended that a patient undergo autonomous robotic surgery using a particular robot, it’s not hard to imagine a creative plaintiff’s lawyer advancing a negligence-based theory similar to negligent hiring. Negligent hiring is a claim made by an injured party against an employer based on the theory that the employer knew or should have known about the employee’s background which, if known, indicates a dangerous or untrustworthy character. The plaintiff’s lawyer could argue that the particular surgical robot employed during the operation had a history of negative results, which would have led a reasonably prudent physician to not recommend it under the same or similar circumstances.

Since diagnosis and treatment options will likely remain in human hands for the foreseeable future, a plaintiff could also sue his or her physician under the theory that the surgery was not medically necessary, and was therefore negligently prescribed.

Finally, assuming there is any evidence of a robotic malfunction resulting from a data breach or some other form of system compromise, an imaginative plaintiff’s lawyer could also bring suit against the physician (and maybe even the hospital where the surgery occurred) based on a negligent failure to ensure proper system security.

This is by no means an exhaustive list of the types of attacks that patients could launch against their human physicians for injuries purportedly sustained while under an autonomous robot’s scalpel. And although autonomous surgical robots are not being used right now, they will be very soon. As famed Seventh Circuit Court of Appeals Judge Richard Posner once wrote: “Law lags science; it does not lead it.” But where science goes, the law will slowly but surely follow. So too is the case here. Thus, physicians, their attorneys and insurers should start thinking about this very real threat sooner rather than later, and take affirmative steps to lessen or eliminate their liability once autonomous surgery becomes the recognized standard of care.