3 - Trusting Robots

Summary

How is liability apportioned between the surgeon and the robot in robot-assisted surgery? In Switzerland, a surgeon’s criminal responsibility rests on an obligation of due diligence. It is generally assumed that due diligence and responsibility is divisible among team members and that each individual is responsible for their own actions. The principle of trust (“Vertrauensgrundsatz”) also establishes that a member of a team may trust other members to do their job. The issue discussed in this chapter is the degree of due diligence owed by surgeons who cooperate with robots. In Switzerland, the principle of trust is not applied to a robot assistant, if only because robots cannot be criminally liable themselves. Apart from complete robot failures, surgeons therefore bare the risk of patient injury from surgical robots, in order to avoid a responsibility gap in the law. However, given that surgical robots benefit patients and are becoming the expected standard of care in certain areas, the chapter argues that the principle of trust should be applied to limit the due diligence expected from a surgeon interacting with a robot, if the robot has been appropriately certified.