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)

In further considering the application of this new technology to more routine or less exigent circumstances, one must realize that surgery today is performed more like "automatic surgery" than one might think. Most of the work during a surgical procedure is not actually done by the famous doctor a patient might have chosen, but is performed by his or her residents; often, the surgeon is not even in the operating room. (44) In the 1970s, Dr. Michael DeBakey, the world famous heart surgeon, "simultaneously supervised as many as ten residents-in-training performing CABGs [coronary artery bypass]." (45) It is comforting, of course, to know that the supervising surgeons are liable for the outcome and mistakes of a resident-in-training. (46)

Technology is available for cybersurgery and automatic surgery and is compatible with the current methods by which surgeons are trained as residents, gradually performing more and more complex tasks under the supervision of a supervising surgeon who has the ability to take over at any moment. (47) For example, Computer Motion also manufactures "SOCRATES(TM)," a "second control panel [for] the cybersurgery system [ZEUS[R]]." (48) Essentially, SOCRATES[TM] supervises ZEUS[R]: "[a] key feature of the SOCRATES[TM] control panel is that the surgeon using it has robotic arm priority over the surgeon at the ZEUS[R] control panel ... the surgeon at the SOCRATES[TM] control panel can override direction given by the surgeon at the ZEUS[R] control panel." (49)

The price tag attached to a machine such as da Vinci[R] or ZEUS[R] is approximately one million dollars, (50) so without even considering the cost needed to set up a technology infrastructure suitable for cybersurgical procedures, the cost of cybersurgery is currently prohibitive. However, the cost of robots is declining and usage by the world's population is increasing. (51) According to the U.N.'s 2004 World Robotics Survey, the domestic use of robots will surge by 2007, a boom "which [will coincide] with record orders for industrial robots." (52) According to one robotics corporation executive, "we are just at a point where robots are becoming affordable." (53) The U.N. study noted "a robot sold in 2003 cost a quarter of what a robot with the same performance cost in 1990." (54)

The study predicted that by 2010, robots will "not only clean our floors, mow our lawns and guard our homes but also assist old and handicapped people with sophisticated interactive equipment, carry out surgery, inspect pipes and sites that are hazardous to people, fight fire and bombs." (55) The increase is already evident in Asia, Europe, and North America, but notably, "the machines are also taking off in richer developing countries, including Brazil, China and Mexico." (56)

III. RELEVANT DEFINITIONS AND CONTEXT

As technology expands, confusion over terminology does as well. Inconsistent uses of terminology will hinder the development of an appropriate regulatory framework. Understanding the terminology in any discussion of developing technology is critical. The starting point in this discussion is the broad concept of e-health. E-health encompasses both cybermedicine and telemedicine, which have differing policy and legal implications. (57) Cybermedicine covers a broad range: "[c]ybermedicine includes marketing, relationship creation, advice, prescribing and selling drugs and devices, and as with all things in cyberspace, levels of interactivity as yet unknown." (58) Examples include doctor-patient e-mail communication, interactions with doctors or nurses through an Internet call center, the creation of websites, as well as Internet pharmaceutical sales. (59)

The World Health Organization defines telemedicine as

[t]he delivery of healthcare services, where distance is a critical

factor, by all healthcare professionals using information and

communications technologies for the exchange of valid

information for diagnosis, treatment and prevention of disease

and injuries, research and evaluation, and for the continuing

education of health care providers, all in the interests of

advancing the health of individuals and their communities. (60)

The definition the American Medical Association uses for telemedicine is "medical practice across distance via telecommunications and interactive video technology." (61) Finally, the American Telemedicine Association defines telemedicine as "the use of medical information exchanged from one site to another via electronic communications to improve patients' health status." (62)

While definitions may vary, one knows what cybermedicine and telemedicine are when one sees them. A few examples are helpful. CyberDocs is a website which provides medical care on-line. (63) Patients receive consultations, second opinions, referrals, and prescription refills. (64) Board-certified American Emergency Medicine Specialists staff the website twenty-four hours a day. (65) Since the inception of CyberDocs in 1996, over 20,000 healthcare sites have emerged on the Internet. (66) Over one hundred million adult Americans have used the Interact at least once to look at health or medical information. (67) Even indigenous groups in Cambodia (which, according to the World Health Organization, has "the direst health situation in the Western Pacific region" (68)) benefit from a telemedicine clinic. (69) A satellite link allows doctors in a hospital to e-mail diagnoses, images of x-rays, ECGs, and ultrasound results. (70)

In surgery, telemedicine plays a role in the mentoring of inexperienced surgeons. (71) At Johns Hopkins University, a central site and an operative site are separated by a distance of about three and a half miles. (72) The mentor at the central site can monitor the activity in the operating room while viewing the procedure in real time and override certain procedures if necessary. (73) In 1998, prior to the realization of truly remote surgery in 2001, one doctor defined cybersurgery as:

an attempt to embrace and describe a new conception for

general surgery and a new set of terms by which surgeons can

both comprehend and reimagine their craft in the Information

Age. It encompasses both an emerging complementarity

between clinicians and machines (particularly computers) and

the integration of diverse digital technologies into the full

spectrum of surgical care. (74)

In 2001, Operation Lindbergh was considered an example of telesurgery (from "tele," the Greek word for "far off") (75) but:

[t]here is often a certain amount of confusion associated with

the term "telesurgery." It has been applied to computer-assisted

surgery, since there is indeed a distance of one or two meters

between the surgeon and the patient. It has also been used as a

surgical equivalent of "telemedicine," meaning guiding the

surgeon performing the procedure ("telementoring" or

"teleprotectoring"). For "telementoring" applications, the

remote contribution to the surgical actions consists only in

providing recommendations. On the other hand, Project

Lindbergh involves what the Americans refer to as "remote

surgery," which consists in performing the entire procedure

remotely. (76)

In this Note, the author uses the term "cybersurgery" to describe "a surgical technique that allows a surgeon, using a telecommunication conduit connected to a robotic instrument, to operate on a remote patient." (77) The author believes this, along with the term telesurgery, is how the term is currently used with respect to remote surgery where the patient and surgeon are really in different places and not just separated by a few feet in the operating room. As laws develop surrounding e-health, consistent definitions will become increasingly important, as characterization of a term can often determine the outcome of a case or application of a law.

IV. A HYPOTHETICAL OUTLINING SEVERAL LEGAL AND REGULATORY ISSUES PRESENT IN TELEMEDICINE AND CYBERSURGERY

Some of the legal issues in cybersurgery are apparent in the following hypothetical. This hypothetical, summarized in the paragraph below, was posited by the Defense Counsel Journal, (78) and presents some of the legal problems associated with a telemedicine malpractice case in the United States. Notably, a host of issues arise without even considering the use of cybersurgery or similar events in an international context.

Consider the following: a car accident in rural New Mexico leaves a person with closed head injuries. (79) A CAT scan is transmitted over the Internet to an academic hospital in Baltimore, where neuroradiologists interpret that the films are within normal limits. (80) Using the Baltimore neuroradiologists' report, the New Mexico physicians decide surgery is not needed. (81) Several days pass and the patient shows no signs of recovery. New images are sent to the Baltimore neuroradiologists who see a change indicating surgery is now necessary. (82) A plan for surgery is formulated by neurosurgeons in New Mexico and Maryland. (83) The operation occurs in New Mexico, and via a digital Internet link, the Baltimore neurosurgeons "monitor and provide technical assistance." (84) While the patient survives the operation, he suffers significant damage. (85) He files a complaint in New Mexico state court against the various doctors, including the neuroradiologists and neurosurgeons in New Mexico and Maryland. (86) One might consider the following questions:

Are the Baltimore physicians subject to suit in New Mexico

state court? Have they had sufficient contacts in that state to

invoke traditional person jurisdiction concepts? By consulting

with the New Mexico physicians, have the Baltimore physicians

(not licensed as physicians in New Mexico) engaged in the

practice of medicine in New Mexico, even though they never

left Maryland? Would the Baltimore physicians be agents,

servants or employees (either actual or apparent) of either the

New Mexico physicians or the hospital where the surgery took

place? If the case ultimately ends up in federal court (which

one?) which state's substantive law would be applied? Would

the Baltimore physicians' malpractice insurance cover this 'out

of state' activity? (87)

Presently, these questions do not have answers. There is very little applicable law currently available. One can only imagine expanding this hypothetical to include the performance of a cybersurgical procedure, much less across international borders. What if the parties included surgeons in different states or countries controlling ZEUS[R] and SOCRATES[TM]? What if a fire, accidentally started by an intoxicated employee of the telecommunication provider, caused a failure in transmission during a critical moment of the surgery? (88) Perhaps one might conclude that no body of law could ever consistently solve the liability, choice of law, and jurisdictional problems presented. However, if one knows that cybersurgery could have played a life saving role in the many permutations of this hypothetical, one has no choice but to tackle these questions, not only with respect to choice of law and jurisdiction, but with respect to questions of licensing and the application of traditional tort principles. (89) Another consideration is the role of telecommunications and telecommunications service providers in defining a standard of care. (90) The following section discusses some of these issues in greater detail.

V. LEGAL AND REGULATORY ISSUES AFFECTING TELEMEDICINE

Cybersurgery is really only "the ultimate application of technology to medicine," (91) and all the technology involved is currently in use on some level today. Yet there are no "international treaties or global agreements that deal with telemedicine...." (92) Insisting that issues be identified and resolved will pave the way for the continued application of technology to global health. In addition, "concern over the diffusion of e-health is a part of the broader issue of access to new health technologies, a theme of growing global importance." (93)

At the global level, the law impacting the practice of telemedicine is:

an odd amalgamation of laws affecting trade, telecommunications

and, to a more limited extent, health care. At

points there are linkages among the respective areas of law

bearing on e-health, but these linkages are largely because

telecommunications and trade policies are so interrelated, and not

due to any concerted attempt to devise unifying legal principles

for e-health technologies. (94)

In 1997, Malaysia (the only country to date) enacted a "generic telemedicine law, covering licensure, informed consent, and telemedicine standard for development." (95) However, as more countries develop laws and regulations, it will further complicate the formation of private contracts, (96) and pose "challenges for the harmonization of e-health with trade law" (97) at the public level.

A. Telecommunications

The International Telecommunications Union (ITU) is the oldest international legislative body, originally created by twenty European countries to set telegraph standards. (98) Today, the ITU is responsible for almost all international regulation covering all forms of telecommunications and is a prominent body dealing with the global regulation of cyberspace. (99) The ITU partners with the private sector to encourage telecommunications growth in developing countries, in addition to its standard-setting role. (100) "As the organization which sets the baseline for global telecommunications, the ITU standards impacting telemedicine will need to be carefully considered in any international arrangement involving cross-border electronic medicine." (101) But what will happen when things go wrong?

Liability of information conduit providers

Service interruption in the transmission of computer data is commonplace. However, it is unlikely conduit providers will face significant liability for service interruption, which could have disastrous consequences in the performance of cybersurgery. (102) In the United States, telephone companies provide the best point of comparison. Under tariffs, plaintiffs are afforded incidental damages. (103) Recently enacted Emergency Service E-911 protects telephone companies from liability for injuries sustained by people using E-911 services for medical treatment or safety. (104)

Further, "limited liability under tariff law for hard-wired telephone service is being extended to the media of broadband--the expected media for cybersurgery data transfer." (105) The public policy behind these laws is that companies must be able to charge reasonable rates and to hold information conduit services providers liable would pass on costs to the public through rate increases. (106) To hold an ISP [internet service provider] liable for intermittent failures in transmission "could result in such extraordinarily high levels of liability that no one would provide Internet services at a reasonable cost." (107)

One scholar has made an interesting comparison between dialing 911 and telemedicine, noting that "[d]ialing 911 is the use of telecommunications technology to enhance the delivery of medical care, and could fall under a rough definition of telemedicine." (l08) Emergency 911 failures require too "many conclusions to form a causal connection" to find liability. (109) However, in telemedicine, the doctor uses communication lines more like an instrument, and one could examine the liability for "less than adequate instruments," (110) suggesting that conduit service providers may not, or should not, escape liability. Since surgeons are not required to have any formal training in computer engineering or telecommunications, yet will rely heavily on the technology, it seems that some regulation of conduit service providers will be essential in certain telemedicinal applications such as cybersurgery.

B. Jurisdiction

When one considers the number of parties involved in a "cybersurgical misadventure" (111) (the telecommunications provider, the robot manufacturer, the doctor and technical team plus the other equipment manufacturers), the idea that the Internet should be treated as its own jurisdiction with its own applicable legal rules is not so far-fetched. (112) Cybersurgery simply defies the traditional principles of jurisdiction as applied to medical malpractice.

Generally, courts view medical treatment as a personal service and the patient's location is considered the point of service in resolving jurisdictional problems. (113) Yet courts have held that if the patient travels to a physician voluntarily without solicitation, then the patient ought to expect to travel again to that jurisdiction should he or she wish to sue the doctor. (114)

There is very little case law with respect to telemedicine and jurisdiction. The one case that barely qualifies as such, Bradley v. Mayo Foundation, (115) does so because a Minnesota doctor changed a Kentucky resident patient's prescription via telephone and subsequently mailed the prescription to the patient in Kentucky, where the patient filled it. (116)

In Bradley, the patient alleged the Mayo Clinic, which is in Minnesota, failed to diagnose and treat a cancerous bone tumor properly. (117) The lawsuit was filed in Kentucky. (118) The doctor had seen and examined the plaintiff on several occasions at the Clinic in Minnesota and corresponded with the plaintiff by mail and over the phone. (119) After a lengthy minimum contacts analysis, the court concluded that no medical treatment was conducted by the Mayo Clinic in Kentucky. (120) The court noted that written and telephone communications are routine events regardless of a patient's location and were incidental to the in-person examinations which the plaintiff sought out and for which he traveled out of state. (121)

The court distinguished this case from McGee v. Riekhof, (122) where a Montana plaintiff traveled to Utah for an eye operation. (123) After the surgery in Utah, the doctor told the patient (who was back in Montana) over the telephone to return to work, where he suffered a severe complication. (124 The doctor was subject to suit in Montana because the sole claim of negligence rested on the telephone recommendation, which was rendered to plaintiff while plaintiff was in Montana. (125)

The Bradley court also distinguished the plaintiff's situation from the one in Kennedy v. Freeman. (126) In Kennedy, the plaintiff's doctor in Oklahoma removed a mole from the plaintiff's body and sent the specimen to another doctor in Texas who measured it incorrectly and failed to diagnose melanoma. (127) Four years later, cancer had spread over the patient's entire body. (128) The court reasoned that while the Texas doctor did not seek out the plaintiff, he did direct his activities towards her in Oklahoma. (129) The court also noted that the plaintiff did not travel to the doctor's state. (130) Certainly, this is the appropriate outcome, but interestingly, the court did not contemplate the situation where a plaintiff might have traveled to have a suspicious mole measured. (131) Under reasoning similar to Bradley, it seems that the doctor would not be subject to suit outside of his own state.

This very small glimpse into jurisdictional problems in medical malpractice indicates there is the potential for inconsistent analysis and that somewhat arbitrary factors are plugged into jurisdictional formulas. Cybersurgery, which defies traditional notions of space and location, will highlight the arbitrary focus on whether a patient physically travels somewhere or not. In cybersurgery, the patient does not travel for services, but essentially is physically present on the doctor's computer screen, and, assuming the patient has consented to the procedure, has sought to make use of the doctor in the patient's own state or country. Further, should a doctor who directs his activities at a patient who otherwise might not be able to receive the proper care necessarily be subject to suit just because technically the patient remained where he or she was?

Some of the seemingly logical ideas for determining jurisdiction in a telemedicine (and ultimately cybersurgical) case prove unsatisfactory. "Electronically transporting" the patient to the jurisdiction (the country or state) where the doctor is located (assuming one could even determine before discovery that the doctor was the party primarily at fault) would fail because states will not give up protecting their own citizens and because it would further complicate matters to "transport" patients to foreign jurisdictions. (132) Transporting the physician to another jurisdiction is equally problematic. (133)

One reasonable suggestion, focusing on the United States, would be to implement a national telemedicine system with national licensing, allowing for federal court jurisdiction and applying the same law and same procedure for the fifty states when disputes between citizens from different states arise. (134) According to one author, "in the context of an international telemedicine system, federal court jurisdiction simplifies matters for foreign defendants or plaintiffs." (135) However, while this approach is a start, it may oversimplify choice of law issues, especially in the international context, considering some countries do not even recognize medical malpractice.

C. Standard of Care Problems

In addition to jurisdictional problems, establishing a standard of care is equally difficult. (136) Standard of care problems are inherent in the use of new medical technology on many levels. (137) The lack of sufficient knowledge of technology leads doctors and companies to offer surgical instrument technology to interested patients with alarming consequences. (138)

"This form of surgical negligence--injury through ignorance of technology--was most recently demonstrated with the introduction of laparoscopic surgery." (139) Many patients sustained injuries because the surgeons were unable to assess the complexity of the new laproscopic instrument that was required for proper hand-eye coordination. (140) Surgeons had a difficult time learning how to use laparoscopic equipment, and "[t]hus, the lesson of laparoscopic surgery for the future application of cybersurgery is that, despite all the years of training, a surgeon is no better intellectually equipped to handle sophisticated instruments without specific detailed training than anyone else." (141)

In December 2003, the family of a Florida man sued a hospital alleging the surgeon was not adequately trained. (142) The man died after an "aborted robotic kidney removal." (143) The family alleged that "the hospital was negligent in allowing two doctors lacking experience and training to use [da Vinci[R]]." (144) In the United States, the FDA is involved in regulating the use of surgical robots. (145) "Recognizing that there is a significant learning curve in the use of the surgical robotic systems, the FDA requires manufacturers to implement training programs for surgeons before surgeons are authorized to use robotic surgical systems on patients." (146) Concerning ZEUS[R], the robot presently available to perform cybersurgery, "Computer Motion [has] to provide an in-depth plan for surgeon training as well as a commitment to conduct this training. Typically, training for the ZEUS[R] surgical system involves approximately 40 hours...." (147)

D. Enterprise Liability

One method that has emerged in the healthcare industry to ensure rational and consistent recovery in malpractice cases that takes into account the potential pitfalls of new technology is enterprise liability. (148) Enterprise liability shifts liability from individual physicians to business organizations providing medical services. (149) Enterprise liability "envisions that a single provider will be responsible for all negligence that is associated with providing the service of cybersurgery." (150) Under this scheme, a "medical service provider would have a financial incentive to select the best cybersurgical instruments and conduit service provider." (151) The theory is premised on the idea that the "most valuable insights about medical accidents [are] generated by [a health care provider] piecing together a series of apparently idiosyncratic incidents to find common patterns in the way that errors, by people or equipment occurred." (152)

Cybersurgery, with its multiple parties, increases the risk for "handoff errors," therefore those involved must be provided with the proper financial incentives to reduce errors. (153) A further benefit of enterprise liability, which could counter the potential for errors associated with the use of sophisticated technology, is that a more "nonpunitive culture" would increase error reporting. (154) Enterprise liability decreases the transaction costs of litigation and "aligns the financial incentives of the cybersurgical provider with the safety interests of the patients." (155)

Enterprise liability seems to resolve some of the problems in a country such as the United States where the threat of malpractice looms more than in other nations. Yet "[m]ost industrialized countries are not hindered by excessive threats of malpractice actions." (156) Interestingly, the threat of malpractice actually inhibits the growth and use of telemedicine in the United States. (157) Further, enterprise liability will not necessarily help set the proper standard of care. (158)

E. An International Standard of Care and Licensing

Thinking about the proper training for using robotic equipment (a likely component in showing a breach of the standard of care) forces one to consider that showing breach gets harder and harder as more and more necessary and indispensable parties are involved. In addition to doctors, instrument manufacturers and conduit providers, there will be software companies involved, since computer software will control much of the robotic movement. (159) Yet "due to the absence of laws regulating telemedicine on both domestic and international planes, physicians' accountability [will be] reduced since it is more difficult to impose liability [and] the patients' ability to evaluate the quality of care they are receiving is diminished." (160)

To realize the potential of telemedicine and cybersurgery, international cooperation is imperative. This is so difficult to achieve because countries have differing licensure requirements, differing laws on license reciprocity, differing laws on how foreign doctors may practice in a given country, differing technological standards, differing cultural beliefs and differing views on technology in general. (161) "In some respects, the lack of international licensure guidelines for the practice of telemedicine is a chicken and egg question. There are few crossnation telemedicine projects. Are there no standards because there are few projects? Or, are there few projects because there is no regulatory framework?" (162)

Unexpected factors can influence whether patients will reap the benefits of technology and to what degree different countries are able to collaborate. "Most countries collaborate their telemedicine practices by sharing advanced computers that make telemedicine link-ups feasible. However, the United States limits the sharing of certain technologies to countries because of the potential threats to national security." (163) For example, certain supercomputers are deemed threats because they can launch nuclear weapons. (164) Another major hindrance to international agreements with respect to telemedicine may be that countries approve equipment at different rates as well as for different procedures. (165)

While complete international harmony with respect to the uses of technology is an unrealistic goal, one must remember that while "[t]he human body is the same throughout the world, laws are different." (166) The establishment of an international standard of care for telemedicine, intertwined with international licensing is most sensible, yet also most ambitious. (167)

An international standard of care should be modeled on America's trend towards a national standard of care. In medical malpractice, there are two ways to evaluate the proper standard of care. In the United States, the locality approach compares a doctor's actions with those of others doctors in similar localities. (168) The national approach holds doctors in the same field responsible for the same knowledge and skill regardless of where he or she is located. (169) There is a trend in some jurisdictions in the United States, given modern education, transportation and communication, to hold doctors to a national standard. (170)

With respect to licensing, one may argue that "a national license, even if only for telemedical use would further the establishment of a dependable and logical standard." (171) Further, "a national system would be able to establish a bright line rule as to liability for equipment failure." (172) As strict liability applies to sellers of traditional medical equipment that is deemed defective and unreasonably dangerous, the same could hold true for telemedical equipment. (173) Extending this logic further, a universal standard of care for doctors, equipment manufacturers and conduit service providers involved in cybersurgery could be established. An international licensure scheme would provide local courts and legislatures with what the governing standards should be. (174) "The technology does not obey geographic borders, and neither should standards of care." (175)

VI. CONCLUSION

Whether cybersurgery will become commonplace remains to be seen. The medical community may well discover that the risks outweigh the benefits. However, the potential for unsolvable or unsatisfactorily resolved legal problems should not be an impediment for the full realization of telemedicine's potential. Clear policy recommendations emerge when considering cybersurgery: international cooperation and global standards, a rethinking of the framework for the liability of information conduit service providers, providing for consistent jur