Varun Saxena from Fierce Medical Devices recently reported that partners Johnson & Johnson and Google are designing their own robotic surgery devices, which “will compete with Intuitive in general surgery arenas, which include hernia repair and colorectal surgery.” The Johnson & Johnson endeavor was formed in collaboration with Google’s Verily Life Sciences and will operate under the name Verb Surgical Inc.. On its website, Verb Surgical proclaims: “Alphabet’s Verily, née Google Life Sciences, is birthing a brand-new company. It’s called Verb Surgical, a collaboration with Johnson & Johnson, and it aims to make robots better surgical assistants. While Johnson & Johnson is an old hand at medical devices, Verily plans to contribute Google’s vast expertise in machine learning and advanced image processing to make the robots smarter.”
In Mass Device, Fink Densford offers additional insight into what the future may hold for these two new players. Mr. Densford reports that Babak Parviz, Google X’s former director, “sold Google a vision of an autonomous surgical robot in 2010. His vision put the patient under the knife of a completely autonomous surgeon which would bring with it lightning-fast reaction times and super-human dexterity, along with the ability to be mass produced.” According to Mr. Parviz, “[b]ecause of the tech Google has developed for its autonomous cars, which utilize advanced computer vision and machine learning, … the company has an opportunity to get the jump on development of the automated robotic surgery tech.”
While the prospect of significant new developments in robotic surgery is certainly exciting and full of promise, it also brings with it potentially limitless legal implications, particularly as surgical robots become more and more autonomous, and plaintiffs’ lawyers develop creative new theories of liability. For instance, as these new players start fielding their surgical robots, important questions will arise including who is responsible and how should liability be apportioned when an autonomous robot is hacked, malfunctions, or simply fails to act in the same artful manner that one would expect from a seasoned surgeon with decades of experience under her belt?
One also has to wonder how the plaintiff’s burden of showing harm will be affected when a robot with super-human dexterity, lightning fast reaction time, and the world’s collected medical knowledge at its disposal cannot successfully complete a surgery. And in cases where there is no evidence of surgical robot error, it remains to be seen whether product indications and contraindications will take center stage. It is not difficult to imagine plaintiffs’ lawyers arguing in favor of liability on the grounds that the patient was not a good candidate for the surgery, that the physician/hospital failed to properly vet the patient, or that the manufacturer failed to properly identify sub-populations that face elevated or atypical risks.
Finally, given the rapid pace at which our ever-evolving understanding of the human body is moving and the inevitable expectations associated with the fact that armies of robotic surgeons can be trained in the latest and greatest techniques at the flip of a switch through firmware updates, new standards of care and protocols will need to be developed. As these and the countless other related issues start slowly being addressed by our legal system, we are likely to see a pronounced shift in the way in which medical negligence and product liability claims are prosecuted and defended.