Recently, my colleagues Jim Muehlberger and Chris Wray made some really good points about robots functioning in permission-based occupations. Does the law permit a robot to serve as your cosmetologist? What about as your surgeon? The last decade has seen great advances in robotics, to the point where machines will soon be assisting—and possibly even replacing—professionals in permission-based occupations. Unfortunately, when the statutes and regulations governing processional licensure and liability were enacted, such questions were thought of as science fiction. Technology has outpaced the law, and key questions are starting to arise about the use of robots in regulated occupations. If a license is required for a human, is it also required for a robot doing the same task? When something goes awry, who is responsible? Courts have already started to grapple with these issues. Reading these cases offers hints about the legal future of robots in personal services.
Occupations that directly serve the public and put the public at some degree of risk—automotive technicians, barbers, cosmetologists, dentists, doctors, locksmiths, surgeons, etc. —require licensure in nearly every state. But these same occupations are ripe for robotic assistance, or even replacement. Machines already assist professionals in automotive repair, barbering, manicures, and even surgery. But does the law allow this? Jim and Chris looked at occupational regulation in California, evaluating the statutes and regulations governing the above-named professions. All of the statutes and regulations contemplate practice solely by persons (whether natural persons or those operating in a corporate form), and none of the statutes or regulations appears to discuss licensure for practice by a machine, or even practice assisted by a machine.
So if the laws do not contemplate machines doing these tasks, are they unregulated? In other words, could a machine do the same task as a human, only without a license? Probably not. Rather, it is likely that the Department of Consumer Affairs (“DCA”) would view the services as being performed by a person (either natural or corporate), even if the service in actuality is performed entirely by machine. Many professions require licensure by activity or location, which means the activity would fall in the purview of the DCA, regardless of who—or what—is doing it. The DCA would likely view the machines as extensions either of their owners or the employees who operate them. From a practical standpoint, California has given the DCA and certain boards and bodies great power to regulate these professions, and it is unlikely that such regulators would sit idly by while machines interacted with the public.
In many ways, the more important question in the future of robots in permission-based occupations is who is liable when something goes awry. Is the manufacturer of the machine liable, or the licensed professional using it? Products liability cases pose a significant threat to robot manufacturers and sellers. Cases have started to pop up on a nationwide basis, and though there have generally been positive findings for robot manufacturers, the answer appears to be that both parties bear responsibility.
Products liability cases have been brought against robotic manufacturers for strict products liability, negligence, failure to warn, and breach of warranty. In these same cases, plaintiffs are also suing licensed professionals. The defense has prevailed in a majority of cases so far, often on procedural grounds. However, in a few cases, the robot manufacturer has prevailed based on causation arguments, essentially pointing out that (1) there is nothing to show that a failure of the robot caused the injuries the plaintiff suffered, or (2) the humans operating or placing the robot were the intervening cause of the injury. See, e.g., Mracek v. Bryn Mawr Hosp., 363 Fed. Appx. 925, 926 (3d Cir. 2010) (surgical robot); O’Brien v. Intuitive Surgical, Inc., 2011 WL 3040479 (N.D. Ill July 25, 2010) (surgical robot); Romano v. Browne, 579 N.Y.S.2d 400 (App. Div. 1992) (mail sorting robot). In other litigation still pending, the robot manufacturer may still be found liable, but to date, courts have often put most of the burden on the licensed professional, not on the assisting machine. See, e.g., Reece v. Intuitive Surgical, Inc., 2014 WL 6891995 (N.D. Ala. Nov. 24, 2014) (surgical robot). Nearly all cases addressed by courts have been in the surgical context, and plaintiffs appear to go primarily after the surgeon and hospital. That may change as robots start being used in industries with less profitability (like cosmetology), as the robot manufacturer will likely have the deepest pockets for plaintiffs to pursue.
Mitigating risks regarding product liability will be particularly important in permission-based occupations, which often also have strong failure-to-warn liability. Robot manufacturers and sellers can alleviate—although probably not eliminate—this risk by (1) providing thorough warnings, (2) providing training to the licensed professionals using the products, and (3) providing ongoing support. Though robot technology is cutting edge, and though the law governing it may be a relic of the past, a time-honored litigation saying still applies: the best defense is a good offense.