The liability within the operating team. The accomplishment of a surgical operation with a robot may require the cooperation of a medical team comprised of more than one surgeon. In this respect, careful consideration should be devoted to the problem of shared liability. Civil liability rules generally concerning the responsibility of all the surgeons in the team, do not perfectly suit malpractice cases involving surgical robots, where the surgeon operating the console makes a mistake during the intervention. Normally, in the case of medical malpractice, all the members of the surgical team are jointly responsible, because everyone is bound to act with diligence as much as to diligently supervise the work of the other, and if necessary to remedy evident errors. Despite this joint responsibility, the part of liability of each surgeon can be different, depending on who in actual fact has made a certain decision or has carried out the harmful act on the patient’s health. This state of things is coherent with a dating tradition of civil law. The article 2055 of Italian civil code states that if the tort is imputable to more than one person, everyone is jointly liable to compensate damage; § 830 I S. 1 BGB, analogously, says that if more than one person has caused damage by a jointly committed tort, then each of them is responsible for the damage. The same principle is not formally established in the French civil code, but nevertheless it has been affirmed by scholars and the law in action (‘la conséquence naturelle de la pluralité de responsables est l’obligation in solidum, également dénommée obligation solidaire’: Corgas-Xxxxxxx: 5; and Cour d’Xxxxx xx Xxxxxx, 00 février 2002). A similar statement, which contains also a punitive value (because someone in the first instance could be bound to compensate the full damage although his role in the causation of it was only marginal) (Medicus & Xxxxxx, 2010, 495, say that the § 830 presents a ‘“strafrechtliche” Teil’), seems particularly iniquitous and irrational if applied without discrimination to the liability of the entire surgical team involved in a robotic-assisted operation, because in robotic-assisted interventions the position of individual operators cannot be considered on the same level. In fact, only the surgeon who sits at the master console can command the robot and, more specifically, only this subject takes advantage of the 3D display above his hands, giving him the virtual sensation of acting within the patient’s body, while the rest of th...
