International Focus
Is the legal world prepared against AI medical malpractice?
CIVIL AND CRIMINAL LIABILITY AND AUTONOMOUS ROBOTIC SURGERY Konstantinos Apostolos
National Researcher of ELSA Greece ILRG: Human Rights and Technology
The rapid development of modern medicine entails, inter alia, the ever-increasing use of AI and robots. Medical robots constitute a decisive factor for high accuracy surgery, possible better outcomes in rehabilitation, whereas their use contributes to the reduction of healthcare costs by enabling medical professionals to shift their focus from treatment to prevention and by making more budgetary resources available for improved adjustment to the plethora of patients’ needs, life-long training of the healthcare experts and research.1 However, contrary to the traditional definition of medical malpractice, the framework on civil and criminal liability for medical errors using AI and robots seems vague.
framework for the regulation of artificial intelligence.2 The framework follows a risk-based approach and categorizes the possible uses of AI depending on the risk posed for public interest or interference with fundamental rights, forming a four-pillar system— minimal risk, limited risk, high risk, de facto ban. Although the proposal addresses a variety of issues, such as the development, distribution and use of AI, a wide range of dilemmas remains unsolved, spearheaded by the civil and criminal liability due to the use of AI, especially in the field of robotic surgery.
On 21.4.2021, the European Commission took the initiative globally by proposing a holistic legal
A study carried out for the European Parliament can shed some light on this labyrinth. In cases, where the doctor acts lege artis, but the system is wrong – two different sets of liability rules apply: product liability rules, concerning the liability of the manufacturer,
1 Resolution 2018/C 252/25 of the European Parliament with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)), 16 February 2017.
2 Proposal COM/2021/206 for a Regulation of the European Parliament and of the Council <https://eur-lex.europa.eu/legal-content/EN/ ALL/?uri=CELEX:52021PC0206> accessed 5 October 2021.
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