Operating Without Borders: Telesurgery and the Global Failure of Medical Liability Law -By Fransiscus Nanga Roka

Since medicine’s earliest days there has been one golden rule: a doctor should stay with his patients as much and as long as possible to make any treatment plan work correctly or simply ensure success when possible.

Everything was tangible, everything was immediate and easily understood. Yet telesurgery breaks away from all this. A nurse may be comforting the patient standing beside her, but where is responsibility visible?

Today, a surgeon situated on another continent can use robotic instruments and instant networks to helpful fields thousands of miles away. A new era of ease first emerges.

But underneath, it is a legal disaster waiting to happen.

In every sense such a surgery is just as exposed as a passer-by going through on his way, but with this one added twist: it carries all the fears and worries of liability waiting to happen.

When something goes wrong in a typical OR, the lines of accountability are reasonably clear. But what happens if an operation is performed by surgeons from one country on another patient, with overseeing robotic systems designed by yet a third country and data channeled through servers in no words between those countries? Who is responsible? What happens when a late signal sends a lethal mistake in the wrong direction? What do you do when an error erases important tissue without condo

But as a matter of fact: nobody at least nothing even close to certain or assured.

The global legal system was not prepared for dream telesurgery situations like this. It is patchy, territorial and vexingly slow bound by national borders where tele-surgery has long leapt out into orbit. Jurisdictional disputes, regulatory contradictions and weak enforcement mean that there are all kinds of ways responsibility can be shared, argued over or steered clean away.

In such an atmosphere the patient becomes weakest link in chain of strong men.

This is not a break through. This is legal shambles.

Adherents of telesurgery like to stress its potential in bringing sophisticated medical care to remote corners of the globe. And that promise is real. But access without transparent responsibility is not progress; it is redistribution of risk. The benefits accrue to institutions and suppliers of technology, while those bearing risk are transferred to patients who may well know little at best how complex systems are being used on their own bodies.

Once again, “consent” has become an empty formality.

Patients are asked to agree to treatments that presuppose technologies they can never completely understand, within legal structures they cannot control. They are told about the benefits, but the potential jurisdictional mess of errors is usually glossed over. In this type of world the based consent, then, is “empowerment,” means more about shifting responsibility.

In the meantime, while waiting for legislators to catch up, the private sector is running ahead. Robotics companies, telecommunication providers, digital health platforms are creating the physical structure of telesurgery as we know it. Often they operate across borders without any regulatory compromise between them at all. Contracts and disclaimers supplant legal rules: responsibility is agreed to, restricted or offloaded -, but not embraced within a cohesive universal framework.

This is not government but improvisation.

The risks are not abstract. A momentary network failure, a cyber attack on the system, or control error can instantly turn a lifesaving procedure into a killing one. And then the question is not simply medical but legal, moral, even deeply political. What court has jurisdiction where? Which law applies? Who responsible?What happens?

In many cases the answer remains undecided, disputed, or simply cannot be grasped.

This uncertainty is not without motive. It favours the wealthy or those in powerful positions of legal expertise, based on their favourable location. But for patients, especially those from low and middle income countries often the exact people who telesurgery seeks to help this means swimming through a complex legal maze with almost no prospect of real relief.

Thus we end up with a two-tier system of risk: that where advanced technologies are distributed globally but its consequences remain confined to specific places.

But the global community cannot afford to ignore this. More important than technical standards and clinical protocols, telesurgery in a world without borders requires a fundamental rethinking of medical author responsibility. This means establishing binding international frameworks that define jurisdiction, allocate responsibility, and ensure enforceable remedies for harm.

It means recognizing that when care crosses borders, accountability goes with it.

Without such frameworks, telesurgery will risk becoming a legal gray area where innovation is fertilized and responsibility is squandered, being a place where mistakes are bound to happen without punishment. A system where definitions of what counts as harm are as fine and complicated as separating the surgeon from his patients.

The stakes are not abstract. They are measured in lives altered, made ill, or lost without clear redress.

A medical system that operates across borders but balks at extending the same legal protection beyond them is not promoting patient care. It is exporting danger.

And a legal order that lets technology sprint ahead of responsibility is more than out of date. It is at fault.

Because in the end, the issue is not whether we can wield scalpels across boundaries. It is whether we are willing to shield those who lie on the operating table while we do.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya Indonesia