Shook, Hardy & Bacon Partner Mihai Vrasmasu authored an article, “Will the Rise of the Machine Mark the Fall of Med Mal?” in the August 2016 issue of the Dade County Bar Association Bulletin. Vrasmasu addresses legal trends and developments in clinical robotics in his Clinical Robotics Law Journal blog.
As “surgical robots make their way into operating rooms across the country,” Vrasmasu explores the question: “Will patients still be able to sue their human physicians for injuries allegedly sustained while under an autonomous surgical robot’s scalpel?”
Vrasmasu discusses three scenarios in which a patient might be able to sue a human physician for a surgical robot’s error. First, Vrasmasu brings to attention the concept of negligent hiring, in that “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.” Second, he states that a physician could be sued for negligent prescription, an argument that suggests “the surgery was not medically necessary.” Finally, Vrasmasu notes that a physician could be sued if “there is any evidence of a robotic malfunction resulting from a data breach or some other form of system compromise.”
Vrasmasu recommends that “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.”