On Liability For Medical Damage Of Intelligent Robots

Accompanied by the sustainable development of modern science,the AI has emerged at the historic moment,and has been widely used in all walks of life.The medical and health field is one of the important application scenarios,and has become a leader in a new round of technological revolution and industry.An important force for change.The popularity of intelligent medical robots will promote the development of the medical and health industry and the development of health and wellness.In particular,it can effectively resolve the allocation of high-quality medical and health resources,the effective use of health and big data,improve the accuracy of disease diagnosis and reduce the pressure on medical workers.However,the development of science and technology will also have an impact on traditional laws and regulations.Therefore,it must be discussed at the early stage of development to establish and improve relevant laws and regulations.Intelligent medical robot is a typical representative of AI technology in the medical field.This article will discuss the problem of medical damage liability of intelligent medical robots.The first chapter introduces the origin of the research,the purpose of the topic and the theoretical and practical significance,the overview part introduces the domestic and foreign situation,and analyzes the research methods used in this paper.In Chapter 2,what is intelligent medical robot? What are its typical applications in daily production and life?And analyze the typical characteristics of medical damage of intelligent medical robot,pave the way for the follow-up analysis.The third chapter is about the dilemma of the application of the traditional tort liability law.The first is the application of the provisions of medical damage liability,which is reflected in two aspects.The first is the causal relationship determination: the non disclosure and non transparency of the black box of artificial intelligence algorithm will bring difficulties to the causal relationship determination,and the distribution of the burden of proof for the causal relationship will also profoundly affect the rights and interests of the defendants in the lawsuit.The second is the judgment of fault.Fault generally refers to the psychological state of intention or fault in the subjective aspect of human beings,while intelligent medical robot does not have the status of legal subject,so it cannot be said that robot has fault.Secondly,if thedoctors operate the robot correctly according to the operation instructions,but still cause damage consequences,how to identify the responsibility? Does the damage behavior of the intelligent medical robot based on program design and autonomous learning hinder the identification of the fault of the medical institution? In the application of product liability,the main difficulties lie in: first,the problem of product defect proof.China 's civil law stipulates the principle of "who advocates who provides evidence",which requires the victim to prove that the product has unreasonable risks.However,intelligent medical robot involves complex algorithm and program problems.Even professional R & D personnel may not fully understand the possible unreasonable risks of the operating system,let alone ordinary people without professional knowledge.The second is the determination of causality.Third,product quality standards need to be further clarified.At present,China has not formulated the relevant national standards and industry standards for medical robots,which will also lead to the lack of referential standards to prove the defects of products.Medical intelligent robot belongs to high-tech products,and will increasingly replace the work of doctors in practice.It is obviously not enough to apply general product quality standards to it.In recent years,the United States has introduced a lot of access standards in the field of automatic driving.The European Union will also develop standards in the field of medical artificial intelligence,and China should follow closely.Fourth,the application of producer exemption rules.The product liability law stipulates the exemption of producer's liability,which is related to how to balance the encouragement of scientific and technological innovation and the protection of consumers' rights and interests? The different value orientation of this issue will affect the application of the principle of imputation of different subjects and the determination of the reasons for exemption.Finally,the responsibility of designers is identified.The product liability law only stipulates the responsibility of producers and sellers,but not the responsibility of designers.In the field of artificial intelligence,the status of program designers is very important,which needs to be discussed separately.The fourth chapter is a concretization of traditional tort liability in the field of intelligent robot medical damage.In terms of exemption reasons,in addition to the victim's consent,force majeure and the third party's reasons in the general sense of civil law,special exemption reasons in the field of medicaldamage liability and product infringement can also be cited,mainly including the implementation of emergency medical treatment,the limitation of medical level at that time,medical accidents and reasonable technical risks.In the aspect of the recognition of the legal status of intelligent medical robots,I think that the time to give the legal status of artificial intelligent agents is not mature at this stage.Although there has been a breakthrough in this aspect in foreign countries,this paper believes that the design of the system on the one hand should respond to the actual needs,balance the interests of all parties,and more importantly,solve the actual disputes.Artificial intelligence agent does not have human's "thought","consciousness" and "emotion",it only has the ability of independent learning and human like intelligence,and its behavior is the result of program design in the final analysis.At present,artificial intelligence is still in the stage of transition from weak artificial intelligence to artificial intelligence,and giving its subject status can not provide convenience for the settlement of disputes in practice.Therefore,it is necessary to further clarify the "object" attribute of intelligent medical robot.Taking this as a logical basis,this paper puts forward a plan to expand the application of the existing tort liability law: first,the designer should be included in the main body of liability,and the liability of medical institutions as producers should be supplemented.How to identify the designer's liability? This paper holds that the fault liability should be applied.The reason is that the tort liability law takes the fault liability as the principle and the strict liability as the exception.Secondly,if the designer is required to bear the strict liability,it will inhibit the enthusiasm of scientific and technological innovation.At the same time,the defects of scientific and technological products should still adhere to the two principles of unreasonable danger and non-compliance with the standards,and gradually realize the law of causality changing from inevitable to uncertain.We can try to expand the application of high risk responsibility to force producers to act cautiously and protect the rights and interests of consumers.In view of the current situation that the access standard is too low and the traditional medical device standard can not effectively prevent and control risks,more specific and strict standards should be formulated.When necessary,intelligent medical robots engaged in specific diagnosis and treatment activities should pass the qualification examination of medical practitioners and other clinical operationexaminations.In view of the problem of sharing the risk of medical damage,we can learn from the practice of the European Union,establish a compulsory insurance system and compensation fund project,and reasonably share the risk of science and technology.In view of the difficulty in identifying causality,the burden of proof of producers can be properly strengthened.In addition,the principle of transparency can be introduced by referring to the practices of the European Union and the field of automatic driving.Through the "black box" and "electronic monitoring" to record and analyze the data,master the behavior track of intelligent medical robot,so as to accurately analyze the cause of damage and reasonably allocate the responsibility.