Cybersurgery: the cutting edge.

I. INTRODUCTION

The year is 2050. A woman in Cuenca, Ecuador unexpectedly gives birth to conjoined twins who require immediate surgery in order to survive. Although the mother has been receiving excellent prenatal care in a well-equipped hospital with a neonatal unit capable of sustaining the twins through recovery, the doctors and surgeons at the local hospital are not experienced in performing the procedure. It is impossible to transport the twins, as one has respiratory difficulties such that changes in air pressure from air travel would be extremely hazardous. Further, the need for surgery is immediate, and there is not enough time for a specialist to travel to Ecuador. However, the doctors contact a surgeon at a prominent hospital in the United States, and using "cybersurgery" the twins have the life-saving procedure without ever leaving Ecuador or requiring a surgeon to travel to them. The surgeon remains in the United States and uses a computer and a real-time audio and video connection to control a robotic surgery system located in the Cuenca hospital.

While a creation of the author's imagination, these events are by no means science fiction. They present a view, albeit somewhat idealized, of the role cybersurgery could play in reducing some of the disparities in global, as well as national medical care while advancing medical technology to a point previously unimaginable. This Note explores some of the legal and regulatory pitfalls that, without attention, will hinder the full realization of cybersurgery's potential. (1) Part II discusses the technology itself as well as potential applications. Part III discusses cybersurgery within the broader context of e-health, telemedicine, and cybermedicine. Part IV considers a hypothetical case involving telemedicine and cybersurgery which outlines problems of jurisdiction, licensing, choice of law, and standard of care. Part V discusses the current laws surrounding telemedicine, the legal issues with respect to the telecommunications industry, and the inadequate law on jurisdictional and standard of care questions. Part VI concludes by summarizing legal and policy recommendations.

II. CYBERSURGERY: TECHNOLOGY, USES, AND POTENTIAL

To demonstrate the feasibility of cybersurgery, one need only look to the world's first successful performance of cybersurgery on humans: on September 7, 2001, Dr. Jacques Marescaux (2) used a computer in New York City to control a robot located in Strasbourg, France to remove a patient's gallbladder. (3) The doctor was in a building in Manhattan, not a hospital, and the robot and patient were in a hospital in Strasbourg. (4) The doctor utilized Computer Motion's ZEUS[R], a voice-activated robotic system. (5) France Telecom, one of Europe's top three Internet service providers and one of its largest wireless operators, provided high-speed fiberoptic service that linked the surgeon and the robotic system. (6) The surgery, aptly named "Operation Lindbergh" after the first solo transatlantic flight, took forty-five minutes and involved forty people, including the medical team, telecommunication engineers, and robotic system specialists. (7) "Transatlantic high-bandwidth fiberoptic service" linked all of the equipment. (8)

The ZEUS[R] system is composed of three robotic arms operated by the surgeon from a remote console (located a few feet from the operating table or across the ocean). (9) Two of the arms hold instruments and are controlled by the surgeon's manipulation of joysticks at the console; the third arm is voice-controlled and operates a camera. (10) The "system is equipped with a dual security system" and "[s]ignals are checked more than 1,000 times per second." (11)

The setup of Operation Lindbergh was as follows: the doctor in New York worked at the robot control station, with a computer transmitting his commands. (12) Using a headset, he talked to the team in France while viewing the patient on a video screen in New York. (13) All the equipment (including computers, videoconferencing equipment, and audio equipment in both New York and France, as well as the robot, the camera, and the robot command station) was connected so that the robot responded to the surgeon's commands in real time with no significant delay in the transmission of sounds or images. (14)

The use of cameras and computer equipment in surgery has been steadily evolving. The advent of minimally invasive surgery, also known as laparoscopic surgery, was introduced in 1988. (15) Laparoscopic surgery involves the use of a tiny camera so that the surgeon can make smaller incisions and does not need to fully open up a patient's abdominal or chest cavity. (16) The first computer assisted surgery took place in 1996. (17) Computer assisted surgery "involves inserting a computer interface between the surgeon and the patient, enabling an analysis of the surgeon's actions in order to repeat them, ensure their safety and then transmit them to a remote manipulation device that performs the actual surgical manipulation." (18)

The 2001 cybersurgical operation was the first time technology could reduce the time delay of long distance transmissions enough to make truly remote surgery possible. (19) The camera "transmits a video image to a transmitter that transmits the image over a telecommunications link to a remote receiver. The receiver relays the image to another computer that generates an image of the internal body tissues of the patient on a monitor." (20) A constant time delay of less than 200 milliseconds must exist between the surgeon's movements and the video image received. (21)

Currently, a satellite link would create "a time delay of 600 milliseconds, making a reliable surgical manipulation impossible." (22) However, the use of satellite transmissions has proved useful in bringing medical care to developing countries. For example, the inspiration for the Cuenca operation at the beginning of this Note comes from a medical journal's discussion of a bilateral open inguinal herniorraphy (hernia surgery), performed in Cuenca, Ecuador. (23) Through the Cinterandes Foundation's mobile surgical facility, surgeons, doctors, and students in Richmond, Virginia were able to view the procedure in real time and speak to the surgeons in Ecuador performing this standard, minimally invasive, camera-assisted surgery. (24) A mobile satellite telephone transmitted audio and video from a computer to an Integrated Services Digital Network (ISDN) videoconferencing system in Richmond. (25)

In addition to ZEUS[R], the other major remote controlled robotic surgery system in use today is the da Vinci[R] system from Intuitive Surgical. (26) Using the da Vinci[R] system, the surgeon also sits at a remote console and, in real time, controls robotic arms that operate like a surgeon's hands. (27) "[T]he robotic 'hands' [are] actually capable of some movement and maneuvers that would be difficult, if not impossible, for a human wrist and hand to accomplish." (28) Da Vinci[R] uses InSite[R] Vision, a system of fiberoptic cables providing stereoscopic vision. (29) This differs from ZEUS[R], which only gives the surgeon two-dimensional video images. (30) While da Vinci[R] only responds to manual controls, ZEUS[R] responds to audio controls as well. (31) Despite the differences, it is sufficient to say that these robots represent, quite literally, the cutting edge of medical technology. (32)

Even though cybersurgery is not yet part of current medical practice, further extensions of the technology have been contemplated, such as the "automatic surgeon." (33) The automatic surgeon is much like an automatic pilot. (34) In addition, with an automatic surgeon, much of the surgery could be performed offline. (35) The surgeon would start the procedure, discover any irregularities in the patient's anatomy and input the information and operative plan into the automatic surgeon. (36) There are several reasons why both cybersurgery and automatic surgery might not be as nerve-wracking as they sound. (37)

First, surgeries on astronauts in space notwithstanding, (38) one must consider some of the uses for cybersurgery. Cybersurgery can greatly increase the survival chances of victims of severe trauma, who might otherwise have no such chance. (39) Studies indicate that survival after major trauma is inversely related to the delay in getting the victim to a surgeon. (40) Put another way, if a person were going to die before being able to reach a surgeon, he or she might be more inclined to have the surgeon reach him or her in whatever way possible, such as through the use of a mobile surgical facility. The military also has an interest in cybersurgery; for example, treating soldiers in a biologically contaminated zone. (41) Cybersurgery will also be of great value to rural areas, which have already benefited greatly from the use of telemedicine. (42) Cybersurgery can also bring surgeons to very remote areas where it is not cost-effective for them to relocate. (43)