수술로봇을 이용한 의료수술과 형사책임의 귀속

Abstract

The paper examined legal issues surrounding robotic surgery, expecially, medical malpractice where surgical robot was used and discussed what changes could be brought by robotic surgery in criminal responsibility. To raise questions regarding robotic surgery and present suggestions, the paper briefly touched on the basic notion of surgical robots and operation method. Then it dealt with criminal responsibility where a malpractice is caused by robotic surgery based on legal status of surgical robots. First, as surgical robots are not capable of making their own independent decision, important criminal elements, such as capacity to act, legal responsibility, or capacity to take penalties, are not recognized for them. For this reason, it is true that even if robots are used in surgery and caused malpractice, there is no way to leave the robots in question to hold criminally liable for any malpractice. Under the current legal institutions, where robotic surgery is unfortunately led to malpractice, operating surgeon, the surgery team, the medical institution where the surgery was carried out, manufacturer or seller of the robot should assume all criminal liability like other malpractice cases where traditional methods of surgery were used. Against this backdrop, the main reason of exploring attribution of criminal responsibility of robotic surgery is that characteristics of surgical robots are far different from those of conventional and traditional medical appliances. Those differences of surgical robots from other types of medical devices raise certain questions regarding criminal liabilities. When it comes to malpractices caused by surgical robots, a crime of professional negligence resulting in injury or in death, or injury could be charged like other malpractice. However, far departure from the previous discussion on the topic, main problems of acknowledging criminal liability of surgeons is to how establish standards and draw boundaries and scope of objective duty of care. In addition, it could be a problem of establishing scope and context of duty of explanation. The paper discussed legal issues and challenges regarding using robots in surgery with hypothetical examples one by one. Lastly, it dealt with liabilities of medical institutions for not only malfunction but maintenance of surgical robots as well as issues regarding production liability of manufacturers or sellers of surgical robots in the boundaries of medial appliance act. It examined violation of duty of confidentiality with regard to storage, maintenance, and discard of medical information stored in systems of surgical robots.