Academic journal article Rutgers Computer & Technology Law Journal

The Robotic Arm Went Crazy! the Problem of Establishing Liability in a Monopolized Field

Academic journal article Rutgers Computer & Technology Law Journal

The Robotic Arm Went Crazy! the Problem of Establishing Liability in a Monopolized Field

Article excerpt

I. INTRODUCTION

In the realm of medicine, which is inherently defined by uncertainty, telesurgery is particularly ambiguous. Telesurgery poses numerous questions about responsibility. Who should be held responsible if this new and innovative medical technique involving operative robots proves harmful and injurious? How should these situations be analyzed? How can injured parties proceed and recover? What happens when only one manufacturer exists?

On January 15, 2010, the United States Court of Appeals for the Third Circuit tackled the question of liability within the world of telesurgery. The court affirmed the grant of summary judgment in favor of defendant manufacturers in Mracek v. Bryn Mawr Hospital. (1) Roland C. Mracek ("Mracek") underwent a prostatectomy (2) at Bryn Mawr Hospital, during which the operative robot "da Vinci[TM]," ("da Vinci") manufactured by Intuitive Surgical, Inc. ("Intuitive"), stopped working) Following the robot's malfunction and subsequent manual operation, Mracek suffered serious side effects, including erectile dysfunction. (4) Mracek then proceeded to sue both Bryn Mawr Hospital and Intuitive for damages pursuant to multiple theories: strict products liability, negligence, breach of warranty, and strict malfunction liability. (5) The lower court granted summary judgment in favor of the defendant manufacturer reasoning that Mracek failed to establish causation between the injury he suffered and the robot's alleged malfunction. (6)

This Note will evaluate the repercussions of such a holding and its creation of a seemingly impossible standard of causation for plaintiffs to overcome. Part II discusses the technology, its evolution and ever-changing uses, and benefits of telesurgery. Part III focuses on the formation of a robotic surgical equipment monopoly. Part IV describes the problems posed by such a monopoly in pursuing products liability causes of action. Part V delves deeper into the implications the Mracek case has on these products' liability scenarios, focusing on the monopoly of robotic technology and its relative obstacles, specifically as it relates to obtaining expert witnesses. Part VI concludes this Note by opining policy and legal recommendations.

II. WHAT IS TELESURGERY?

A. DEVELOPMENT OF TELESURGERY

Telesurgery, also referred to as cybersurgery, is most commonly defined as a surgical technique which allows for a surgeon to operate on a patient remotely, either from a different location or at a close proximity, through a telecommunications channel attached to a robotic operating machine. (7) For purposes of this Note, telesurgery will solely refer to the above definition to avoid any confusion. This definition represents the term's current use with respect to remote surgery, (8) and is in sync with the definition at issue in the Mracek case. (9) Moreover, telesurgery and cybersurgery will be used interchangeably throughout this article, both referring to the same field of remote, robotic surgery.

Cybersurgery stems from telemedicine, a broader field of medicine with varying definitions across domestic jurisdictions. (10) Each of these variations consistently involve the same focus: "the movement of health information via electronic or telecommunicative means and the provision of medical services via electronic or telecommunicative means without direct face-to-face interaction between the healthcare professional and the patient." (11) Such medicine stems from a desire for quality care in medicine through accessibility. (12)

That same push for quality care, through both accessibility and efficiency, has been a dominating force in the development of telesurgery. For example, the Department of Defense ("DOD") was attracted to telesurgery and hoped to develop a process to set up robotic instruments in the field to perform operations from a remote location if need be. (13) Subsequently, a medic could set up robotic tools in a remote war-zone while a surgeon in a domestic hospital performs a life-saving procedure on a soldier. …

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