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

摘要

I. INTRODUCTION In 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, United States Court of Appeals for Third Circuit tackled question of liability within world of telesurgery. The court affirmed 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 operative robot da Vinci[TM], (da Vinci) manufactured by Intuitive Surgical, Inc. (Intuitive), stopped working) Following 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 defendant manufacturer reasoning that Mracek failed to establish causation between injury he suffered and robot's alleged malfunction. (6) This Note will evaluate repercussions of such a holding and its creation of a seemingly impossible standard of causation for plaintiffs to overcome. Part II discusses technology, its evolution and ever-changing uses, and benefits of telesurgery. Part III focuses on formation of a robotic surgical equipment monopoly. Part IV describes problems posed by such a monopoly in pursuing products liability causes of action. Part V delves deeper into implications Mracek case has on these products' liability scenarios, focusing on 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 above definition to avoid any confusion. This definition represents term's current use with respect to remote surgery, (8) and is in sync with definition at issue in Mracek case. (9) Moreover, telesurgery and cybersurgery will be used interchangeably throughout this article, both referring to 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 same focus: the movement of health information via electronic or telecommunicative means and provision of medical services via electronic or telecommunicative means without direct face-to-face interaction between healthcare professional and 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 development of telesurgery. For example, Department of Defense (DOD) was attracted to telesurgery and hoped to develop a process to set up robotic instruments in 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. …