Cybersurgery: The Cutting Edge

Abstract

I. INTRODUCTION The year is 2050. A woman in Cuenca, Ecuador unexpectedly gives birth to conjoined twins who require immediate surgery in order to survive. Although the mother has been receiving excellent prenatal care in a well-equipped hospital with a neonatal unit capable of sustaining the twins through recovery, the doctors and surgeons at the local hospital are not experienced in performing the procedure. It is impossible to transport the twins, as one has respiratory difficulties such that changes in air pressure from air travel would be extremely hazardous. Further, the need for surgery is immediate, and there is not enough time for a specialist to travel to Ecuador. However, the doctors contact a surgeon at a prominent hospital in the United States, and using the twins have the life-saving procedure without ever leaving Ecuador or requiring a surgeon to travel to them. The surgeon remains in the United States and uses a computer and a real-time audio and video connection to control a robotic surgery located in the Cuenca hospital. While a creation of the author's imagination, these events are by no means science fiction. They present a view, albeit somewhat idealized, of the role cybersurgery could play in reducing some of the disparities in global, as well as national medical care while advancing medical technology to a point previously unimaginable. This Note explores some of the legal and regulatory pitfalls that, without attention, will hinder the full realization of cybersurgery's potential. (1) Part II discusses the technology itself as well as potential applications. Part III discusses cybersurgery within the broader context of e-health, telemedicine, and cybermedicine. Part IV considers a hypothetical case involving telemedicine and cybersurgery which outlines problems of jurisdiction, licensing, choice of law, and standard of care. Part V discusses the current laws surrounding telemedicine, the legal issues with respect to the telecommunications industry, and the inadequate law on jurisdictional and standard of care questions. Part VI concludes by summarizing legal and policy recommendations. II. CYBERSURGERY: TECHNOLOGY, USES, AND POTENTIAL To demonstrate the feasibility of cybersurgery, one need only look to the world's first successful performance of cybersurgery on humans: on September 7, 2001, Dr. Jacques Marescaux (2) used a computer in New York City to control a robot located in Strasbourg, France to remove a patient's gallbladder. (3) The doctor was in a building in Manhattan, not a hospital, and the robot and patient were in a hospital in Strasbourg. (4) The doctor utilized Computer Motion's ZEUS[R], a voice-activated robotic system. (5) France Telecom, one of Europe's top three Internet providers and one of its largest wireless operators, provided high-speed fiberoptic that linked the surgeon and the robotic system. (6) The surgery, aptly named after the first solo transatlantic flight, took forty-five minutes and involved forty people, including the medical team, telecommunication engineers, and robotic specialists. (7) Transatlantic high-bandwidth fiberoptic service linked all of the equipment. (8) The ZEUS[R] is composed of three robotic arms operated by the surgeon from a remote console (located a few feet from the operating table or across the ocean). (9) Two of the arms hold instruments and are controlled by the surgeon's manipulation of joysticks at the console; the third arm is voice-controlled and operates a camera. (10) The is equipped with a dual security system and [s]ignals are checked more than 1,000 times per second. (11) The setup of Operation Lindbergh was as follows: the doctor in New York worked at the robot control station, with a computer transmitting his commands. (12) Using a headset, he talked to the team in France while viewing the patient on a video screen in New York. …