This chapter, written with Jason Millar and Noel Corriveau, examines the increased use and evolution of robotics and AI in the health sector as well as emerging challenges associated with this increase. Our goal is to provoke, challenge and inspire readers to think critically about imminent legal and regulatory issues in the healthcare sector.

We begin in part one by offering an overview of the current use of robots and AI in healthcare: from surgical robots, exoskeletons and prosthetics to artificial organs, pharmacy and hospital automation robots, and finally examining the role of social robots and Big Data analytics. While great technological strides are materializing, there is a corresponding need for regulatory mechanisms to follow, ensuring a simultaneous evolution of the relationship between human and machine in order to achieve the best outcome for patients. In an era of information overload, security standards and data protection and privacy laws will need to adapt and be adjusted to ensure patient safety and advocacy.

In part two, we discuss main sociotechnical considerations. First, we examine the impact of sociotechnical considerations in changing the overall medical practice as the understanding and decision-making processes evolve to include AI and robots. Next, we address how the social valence considerations and the evidenced-based paradox both raise important policy questions related to the appropriateness of delegating human tasks to machines, and the changes in the assessment of liability and negligence.

In part three, we address the legal considerations of liability for robots and AI, for physicians and for institutions using robots and AI as well as AI and robots as medical devices. Key considerations regarding negligence in medical malpractice come into play as the duty and standard of care will need to evolve amidst the emergence of technology. Legal liability will also need to evolve as we inquire into whether a physician, choosing to rely on their skills, knowledge and judgement over an AI or robot recommendation, should be being held liable and negligent. Finally, we address the legal, labour and economic implications that come into play to when assessing whether robots can be considered employees of a health care institution, and the potential opening of the door to vicarious liability. We remind our readers that institutions will also have to consider their direct duties to patients, including their duty to instruct and supervise in the case of robots.

Our overall aim is to leverage technology to provide accessible and efficient health care services, without over- or under- regulation. We believe this will be achieved, while mitigating risks, through the development of new social, legal and policy frameworks.

Read the full chapter.