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robot robotic surgery operation

Surgical robots have progressed from being new to being considered standard technology in medicine today. Learning to perform surgery through a virtual medium takes time. Learning how to coordinate one’s fingers, hands and feet to control a robot’s arms and “fingers” takes time. Robotic surgeons do not reach the cutting-edge of competency until performing enough procedures to learn the technique sufficiently well to have an acceptable complication rate, with each procedure having its own learning curve. To twist a phrase from the Wizard of Oz, patients need to know “Who is that man behind the robot?”

In Howard v. University of Medicine and Dentistry of New Jersey, 172 N.J. 537 (2002), the court considered whether a surgeon’s misrepresentation of experience can affect the validity of the consent obtained and negate informed consent. The court noted that New Jersey law had never previously held that doctors have a duty to detail their background and experience as a part of the required informed consent disclosure. A physician’s experience is generally not information that directly relates to the procedure itself or the known risks for complications and alternative treatments that must be disclosed. Although the court did not decide that question in Howard, it noted that a physician’s misrepresentation of qualifications could be a basis for lack of informed consent. A physician’s experience may be a material fact that a reasonably prudent person would want to know, if that actual level of experience has the capacity to directly increase the risk of harm from the procedure.

Misrepresented physician experience would have to significantly increase the risk of a procedure in order for it to affect the judgment of a reasonably prudent patient in an informed consent case. The court articulated a two-step proximate cause analysis for determining the facts under which a claim of lack of informed consent can be brought when physicians misrepresent qualifications: First, expert testimony must establish that the more limited experience or credentials could have substantially increased the patient’s risk of harm; second, the substantially increased risk would could cause a reasonably prudent person not to consent to the surgery. Id. at 556-59.

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