So, Neuralink technology is being implanted into my brain. Are there any legal implications?
So, Neuralink technology is being implanted into my brain. Are there any legal implications?
It sounds like a storyline straight out of a Black Mirror episode, but society is much closer to electrode implantation than you might think and with that comes with it a series of legal implications.
Recently, Elon Musk's company, Neuralink, started recruiting participants for trials that will test individuals' ability to send signals from their brains to computing devices, allowing them to control the devices' movements. This can only be achieved by implementing several electrodes into a patient's brain.
Currently, the individuals being selected are quadriplegics as a result of amyotrophic lateral sclerosis or a spinal cord injury. While Health Canada has just approved the trials, the technology has already been implanted into patients in the United States.
But will there be legal ramifications for this type of procedure? The initial consideration is that, should any complications arise during the procedure, the patient may have grounds for a medical malpractice claim.
The most critical elements of a medical malpractice claim involve demonstrating that the physician acted negligently, resulting in direct harm to the patient, and that the physician's actions fell below the accepted standard of care. Since, at the time of writing this blog, this is a brand-new technology that is being rolled out gradually and that society is still a few years away from the possibility of widespread adoption, we have yet to see a medical malpractice case materialize.
Typically, in medical malpractice cases, an expert report will have to be obtained by the plaintiff in order to strengthen their case. But in the case of Neuralink, the technology is so new that it could be rather difficult to find a doctor who can provide expert evidence on this emerging innovation.
Another aspect of this medical procedure is the issue of the liability waiver. Patients who opt to have elective surgery that is non-essential typically must sign a liability waiver. Liability waivers are contracts that, in this case, a doctor or medical clinic would provide the patient to absolve them of any wrongdoing should something go awry during the procedure. If something were to go wrong, and the patient suffered significant harm, the question of whether the waiver is enforceable can be complicated.
Waivers can be enforceable if they are explicitly and clearly articulated regarding the procedure and the potential risks involved. However, the 2020 case of Zaky v. 2285771 Ontario Inc. established three exceptions to the enforceability of liability waivers:
The principle of non est factum (the patient misunderstood or misinterpreted the nature of the document signed).
The patient’s signature was induced by fraud or misrepresentation.
The defendant (doctor/clinic) knew or ought to have known that the patient did not intend to be bound by the waiver and thus had a duty to bring the terms of the waiver to the plaintiff’s attention.
If something goes wrong, patients participating in the procedure should be aware of the challenges that occur by the courts when examining a liability waiver. Each case is characterized by a unique set of facts, prompting the courts to carefully examine the patient's specific circumstances leading up to the signing of the waiver. This includes the following:
Did the patient read the waiver?
What was the length of the waiver?
Did the patient understand the waiver?
What was the language of the waiver?
How was the waiver presented to the patient?
How much time was the patient given to read and sign the waiver?
The court will also look at whether the patient was given the opportunity to ask questions prior to signing and whether reasonable steps were taken to ensure the terms of the waiver were brought to the patient’s attention. The bottom line is that if someone becomes a participant of a surgery, they should be aware of exactly what they are signing up for and understand the risks involved.
Our personal injury lawyers are experts in Medical Malpractice. If you or someone you know has been or believes they have been injured by a medical provider, please contact us. The consultation is free. We are here to help.
