Surgical Robots: Are Batteries Included?

Published date06 July 2022
Subject MatterLitigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Professional Negligence, Biotechnology & Nanotechnology
Law FirmWilliam Fry
AuthorMr Barry Scannell, Charleen O'Keeffe and Mary Cooney

One of the main ideas behind digitalisation is the dissolution of the dividing line which bifurcates the real world from the online world. Technologies such as 5G, Internet of Things, Augmented Reality (AR) and Virtual Reality (VR) allows the digital realm to bleed into the physical world, and visa versa. With the ability to now undertake activities in the digital world which were once only possible in the physical world, we must ask ourselves, are our laws capable of dealing with the melding of these two realms. A prime example of this is remote robotic surgery, where, using technologies such as 5G, AR and VR a surgeon on one side of the world can operate on a patient at the other side of the world.

Remote Robotic Surgery

In 2019, with the use of surgical robots and 5G technology, 12 patients in six hospitals in six different cities in China had an orthopaedic spinal surgery performed on them. The patient was anaesthetised, and then three-dimensional images of the patient were obtained by a motorised robotic arm. The images were then transmitted to the master control room in Beijing Jishuitan Hospital Remote Surgery Centre. From Jishuitan Hospital, the surgeon could control the surgical robot remotely and insert orthopaedic screws into the patients' spines. Advances in robotics technologies, minimal latency, high bandwidth and reliable communication have enabled such surgical developments.

Surgical Robots: Are Batteries Included?

Battery in the law of torts can be defined generally as wrongful or harmful unwanted physical contact on another. It protects people against contact which they have not consented to. It is part of the broader category of trespass to the person, which includes assault. Any medical procedure could be held to be a battery unless there is written or oral consent or other lawful reason, such as an emergency where the patient is unconscious.

The onus of showing that consent has been provided rests with the doctor. O'Leary v HSE and ors [2016] IECA 25 established that even where it was alleged that informed consent had not been provided (and thus it was alleged that the procedure was a battery) as there was no evidence that the patient would not have consented if such a warning was given then the case must fail on a causation point.

Proceedings arising out of a failure to provide informed consent are not usually based on the tort of battery but rather arise under the tort of negligence. A failure to ensure that proper and adequate...

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