(U.S. Patent No. 824], italics added. opn., ante, p. Third, in soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision. [52] Moore thereafter alleges that "he is the owner of his Blood and Bodily Substances and of the by-products produced therefrom...." And he further alleges that such blood and bodily substances "are his tangible personal property, and the activities of the defendants as set forth herein constitute a substantial interference with plaintiff's possession or right thereto, as well as defendants' wrongful exercise of dominion over plaintiff's personal property rights in his Blood and Bodily Substances.". I might further agree that "scientific use" could be extended to include purely scientific study of the tissue by a disinterested researcher for the purpose of advancing medical knowledge — provided of course that the patient gave timely and informed consent to that use. (8) (See fn. We declined to so hold for several policy reasons. "Even though good reasons exist to support informed [181] consent with tissue commercialization, a disclosure requirement is only the first step toward full recognition of a patient's right to participate fully. 133.) The question implicates choices which not only reflect, but which ultimately define our essence. As we have already discussed, the existence of a motivation for a medical procedure unrelated to the patient's health is a potential conflict of interest and a fact material to the patient's decision. 132, 607 P.2d 924, 2 A.L.R.4th 1061], we adopted a "market share" theory of liability for injury resulting from administration of a prescription drug and suffered by a plaintiff who without fault cannot trace the particular manufacturer of the drug that caused the harm. Supreme Court of California. 4, post), in my view the single policy reason offered by the majority for rejecting a conversion cause of action here is unpersuasive and is outweighed by policy reasons to the contrary. opn., ante, p. Under Education Code section 92040, "[t]he Regents ... may acquire by eminent domain any property necessary to carry out any of the powers or functions of the University of California." Although in this case defendants did not disregard a specific directive from plaintiff with regard to the future use of his body part, the complaint alleges that, before the body part was removed, defendants intentionally withheld material information that they were under an obligation to disclose to plaintiff and that was necessary for his exercise of control over the body part; the complaint also alleges that defendants withheld such information in order to appropriate the control over the future use of such body part for their own economic benefit. California -. Presently, biotechnology allows only the manipulation, not the creation, of life. Moore's T-lymphocytes were interesting to the defendants because they overproduced certain lymphokines, thus making the corresponding genetic material easier to identify. There are two grounds to doubt that this prophecy will be fulfilled. (a)) — and thus is not directly applicable to the present case which involves a living donor — the act is nonetheless instructive with regard to this state's general policy concerning an individual's authority to control the use of a donated body part. If these allegations are true, defendants clearly improperly interfered with plaintiff's right in his body part at a time when he had the authority to determine the future use of such part, thereby misappropriating plaintiff's right of control for their own advantage. With the Regents' assistance, Golde negotiated agreements for commercial development of the cell line and products to be derived from it. Rptr. Why? of Medical Examiners (1967) 249 Cal. )[48] — makes it quite clear that a patient does have this right. [48] Unless otherwise noted, all section references are to the Health and Safety Code. ), [77] Again the rule is general: "the vast majority of jurisdictions that have considered the issue apply an objective standard," focusing "on what a reasonable patient in the plaintiff's position would have done if adequately informed." at p. In the event that an institution violates "any law or any rule of the university", the Regents is empowered to "suspend the charter or any of the rights and privileges of such institution.". Because exclusive power to effect change in the law of patents lies with Congress and the federal courts (U.S. ), (4d) Since conversion is a strict liability tort,[38] it would impose liability on all those into whose hands the cells come, whether or not the particular defendant participated in, or knew of, the inadequate disclosures that violated the patient's right to make an informed decision. There are two barriers to recovery. Rptr. (a)(1)), expressly provides that such a gift "may be made to a designated donee or without designating a donee" (§ 7153, subd. Plaintiff alleges that his physician failed to disclose preexisting research and economic interests in the cells before obtaining consent to the medical procedures by which they were extracted. (2a) Moore repeatedly alleges that Golde failed to disclose the extent of his research and economic interests in Moore's cells[6] before obtaining consent to the medical procedures by which the cells were extracted. Code, §§ 654, 655.) at p. 621). (Maj. opn., ante, pp. (Danforth, supra, 6 Yale L. & Pol'y Rev. opn. 415 20th St, Oakland, 94612. Business to Client (B2C) The Regents Of The University Of California is a B2C company, that has been known in the Educational Services field as one of the best partners in business. Relevant Facts: Pl Moore visited UCLA medical center and was diagnosed with hairy cell leukemia. We wrote that, "[i]f drug manufacturers were subject to strict liability, they might be reluctant to undertake research programs to develop some pharmaceuticals that would prove beneficial or to distribute others that are available to be marketed, because of the fear of large adverse monetary judgments." ), The extension of conversion law into this area will hinder research by restricting access to the necessary raw materials. Of the relevant policy considerations, two are of overriding importance. According to a research paper to which defendants contributed, Moore's cells overproduced lymphokines because they were infected by a virus, HTLV-II (human T-cell leukemia virus type II). Insofar as Special Term viewed appellants' action as an article 78 proceeding to review the determination of the commissioner denying registration of appellants' programs, the court concluded that, as to the history program, judicial review was barred by the Statute of Limitations. Law (9th ed. 6) the article explains: "Many incorrectly believe that biotechnology permits scientists to `create' life. (See Matter of Levine v Whalen, 39 N.Y.2d 510, 515; Matter of Mooney v Cohen, 272 N.Y. 33, 37.) As far as I know, no member of this court is trained as a molecular biologist, or even as a physician; without expert testimony in the record, therefore, the majority are not competent to explain these arcane points of medical science any more than a doctor would be competent to explain esoteric questions of the law of negotiable [184] instruments or federal income taxation, or the rule against perpetuities. 146.) of Mosk, J., post, at pp. Lesser forms, such as indentured servitude or even debtor's prison, have also disappeared. App.3d 593, 610-611 [176 Cal. J. on Legis. (a)) the prohibition applies only to sales for "transplantation" or "therapy. 3d 120; 271 Cal. 27. 27.). See also 42 U.S.C. by Mosk, J.]) Levy & Amerian, Horvitz & Levy, Ellis J. Horvitz, Peter Abrahams, Coleman & Marcus, Richard M. Coleman, Michael D. Marcus, Hale & Dorr, John G. Fabiano, Ian Crawford, Covington & Crowe, Robert E. Dougherty and Robert H. Reeder for Defendants and Respondents. Rptr. Moore v. Regents of the University of California Supreme Court of California, 1990 793 P.2d 479. 179, 198-201; Note, Source Compensation, supra, 64 Notre Dame L. Rev. 2, ante) by attracting protein molecules, which bond to form a strand of "messenger RNA" (mRNA) in the mirror image of the gene. 34.) The majority's first reason is that "no reported judicial decision supports Moore's claim, either directly or by close analogy." (OTA Rep., supra, at pp. The plaintiff, John Moore, sought treatment at the Medical Center of the University of Cali- Informed consent to commercialization, absent a right to share in the profits from such commercial development, would only give patients a veto over their own exploitation. (Cobbs v. Grant, supra, 8 Cal.3d at p. Appellants, the Chancellor and Trustees of the State University of New York and certain professors and doctoral students in the History and English Departments of the State University of New York at Albany, commenced this action seeking a declaration that the Trustees of the State University constitute the body charged with the operation of university programs, courses and curricula, thus invalidating the directive of the commissioner denying registration of doctoral programs in history and English, as made in excess of his powers. The Court of Appeal also directed the superior court to decide "the remaining causes of action, which [had] never been expressly ruled upon.". Since the patent office requires the holders of patents on cell lines to make samples available to anyone, many patent holders place their cell lines in repositories to avoid the administrative burden of responding to requests. Similarly, under Health and Safety Code section 24173, a physician who plans to conduct a medical experiment on a patient must, among other things, inform the patient of "[t]he name of the sponsor or funding source, if any, ... and the organization, if any, under whose general aegis the experiment is being conducted. "[76], The second barrier to recovery is still higher, and is erected on the first: it is not even enough for the plaintiff to prove that he personally would have refused consent to the proposed treatment if he had been fully informed; he must also prove that in the same circumstances no reasonably prudent person would have given such consent. As a result, the Regents underwent a metamorphosis, the effect of which was to clothe it with a broad policy-making function over higher education in New York, leaving the day-to-day operation of the colleges to their own governing bodies. Possibly because of these changes in the virus, the cell line has developed new abilities to grow in different media. In this context the term "fiduciary" signifies only that a physician must disclose all facts material to the patient's decision. (OTA Rep., supra, at p. Subsequently, however, the Legislature altered the role of the Regents by granting to a board of trustees of Columbia College autonomous control over the operation of the college. Without such a duty, any injury is "damnum absque injuria" — injury without wrong. 176.) The concept of informed consent, however, is broad enough to encompass the latter. (Note, Source Compensation for Tissues and Cells Used in Biotechnical Research: Why a Source Shouldn't Share in the Profits (1989) 64 Notre Dame L. Rev. The first human tumor cell line, which still is widely used in research, was isolated in 1951. I would agree that "scientific use" at least includes routine postoperative examination of excised tissue conducted by a pathologist for diagnostic or prognostic reasons (e.g., to verify preoperative diagnosis or to assist in determining postoperative treatment). And such reluctance to act would be especially unfortunate at the present time, when the rapid expansion of biotechnological science and industry makes resolution of these issues an increasingly pressing need. Moreover, as previously discussed, sections 210 and 215 of the Education Law must be interpreted to empower the Regents to register degree programs as well as the institutions themselves in terms of New York standards. First, "the patient must show that if he or she had been informed of all pertinent information, he or she would have declined to consent to the procedure in question." Having concluded — mistakenly, in my view — that Moore has no cause of action for conversion under existing law, the majority next consider whether to "extend" the conversion cause of action to this context. Rptr. (Conc. ), [67] "Besides patent protection, intangible property rights in human biologics arise through contractual ordering. Each court stated, following Prosser, that it was "pointless" to debate the proper characterization of the proprietary interest in a likeness. The profits are shared in a wide variety of ways, including "direct entrepreneurial ties to genetic-engineering firms" and "an equity interest in fledgling biotechnology firms" (Howard, supra, 44 Food Drug Cosm. To hold otherwise would open the door to a massive invasion of human privacy and dignity in the name of medical progress." ... Special Term granted summary judgment to respondents, the Board of Regents and the Commissioner of Education, holding that respondents do possess the power to review academic programs offered by the State University to determine whether such programs should be ⦠The majority's second reason for declining to extend the conversion cause of action to the present context is that "the Legislature should make that decision." [31] Schloendorff v. New York Hospital, supra, is often cited as the first opinion recognizing the concept of informed consent. Regents of the University of California, 17 Cal. Acting upon this mandate, the commissioner promulgated a regulation requiring the registration of "[e]very curriculum creditable toward a degree offered by institutions of higher education" (8 NYCRR 52.1 [a] [1]).1, To effectuate this registration requirement, the commissioner also promulgated a regulation setting forth standards to be employed in the determination whether to grant or deny the registration of degree programs offered by all institutions of higher education, both private and public. (See OTA Rep., supra, at p. ), However, we made that statement in the context of a physician-patient relationship unaffected by possible conflicts of interest. Third, the tort of conversion is not necessary to protect patients' [143] rights. 936 (1991) [Background: In 1976 John Moore sought treatment for hairy-cell leukemia at the Medical Center of the University of California, Los Angeles. If one has an adequate source of mRNA — the gene's mirror image — it can be used to make a copy, or clone, of the original gene. Moore v. Regents of the University of California. This plan includes public as well as private institutions. Therefore, applying the [133] principles already discussed, the allegations state a cause of action for breach of fiduciary duty or lack of informed consent. 4, ante), there are sound reasons of ethics and equity to recognize the patient's right to participate in such benefits. Some lymphokines have potential therapeutic value. Because the superior court found that Moore [134] had not stated such a cause of action, it had no occasion to address the sufficiency of Moore's allegation that the Regents and Quan were acting as Golde's "agent[s]" and "joint venturer[s]. (Hymowitz v. Eli Lilly and Co. (1989) 73 N.Y.2d 487 [541 N.Y.S.2d 941, 539 N.E.2d 1069].). CitationMoore v. Regents of University of California, 51 Cal. Rptr. But to the extent that "authoritative" implies "conclusive," it is a misstatement of patent law. The complaint also alleges that defendant Regents of the University of California (hereafter Regents) actively assisted the individual defendants in applying for patent rights and in negotiating with bioengineering and pharmaceutical companies to exploit the commercial potential of Moore's tissue. This section authorizes the Regents or the Commissioner of Education to "visit, examine into and inspect, any institution in the university" and to "require, as often as desired, duly verified reports therefrom giving such information and in such form as the regents or the commissioner of education shall prescribe." 245. I do not stress the concept of profit, but the concept of science: the distinction I draw is not between nonprofit scientific use and scientific use that happens to lead to a marketable by-product; it is between a truly scientific use and the blatant commercial exploitation of Moore's tissue that the present complaint alleges. 1988) Torts, § 621, p. 715; Rest.2d Torts, §§ 221, 229.) Start studying Property in One's Person: Moore v. Regents of UC. They allege that on Moore's request, the campus police briefly detained Poddar, but released him when he appeared rational. Nor is such a person, strictly speaking, a "joint inventor" within the [169] meaning of the term in federal law. And endangered species laws may limit an owner's right to develop the land from its natural state. (Cal. 14 (Cal. 146; 793 P.2d 479) was a landmark Supreme Court of California decision filed on July 9, 1990 which dealt with the issue of property rights in one's own body parts.John Moore underwent treatment for hairy cell leukemia at the UCLA Medical Center under the supervision of Dr. David W. Golde. [79] Contrary to the majority's implication (maj. The majority next relies on the provisions of section 7054.4,[49] a statute that addresses the potential health hazards posed by the improper disposal of human body parts, reasoning that this statute "drastically limits a patient's control over excised cells." The five defendants are: (1) Dr. David W. Golde (Golde), a physician who attended Moore at UCLA Medical Center; (2) the Regents of the University of California (Regents), who own and operate the university; (3) Shirley G. Quan, a researcher employed by the Regents; (4) Genetics Institute, Inc. (Genetics Institute); and (5) Sandoz Pharmaceuticals Corporation and related entities (collectively … omitted, italics added.) The two briefly dated, but after Tarasoff rejected him in favor of other men, Poddar became extremely depressed and began stalking Tarasoff. Moore, adopting the analogy originally advanced by the Court of Appeal, argues that "[i]f the courts have found a sufficient proprietary interest in one's persona, how could one not have a right in one's own genetic material, something far more profoundly the essence of one's human uniqueness than a name or a face?" 180.). Finally, the majority's analysis of the relevant policy considerations tellingly omits a most pertinent consideration. In the absence of a specific grant of power by the Legislature (see, e.g., Education Law, § 210 [to register domestic and foreign institutions]; § 215 [to examine, inspect and visit institutions and to require their submission of reports]), the Regents cannot transform section 207 of the Education Law, the fountainhead of the Regents' rule-making power, into an all-encompassing power permitting the Regents' intervention in the day-to-day operations of the institutions of higher education in New York. Yet it does not necessarily follow that, as the majority claim, application of the law of conversion to this area "will hinder research by restricting access to the necessary raw materials," i.e., to cells, cell cultures, and cell lines. As a general matter, the tort of conversion protects an individual not only against improper interference with the right of possession of his property but also against unauthorized use of his property or improper interference with his right to control the use of his property. 162, 690 P.2d 635], we held inadmissible the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue. 4,438,032 (Mar. (L 1961, ch 388.) App.3d 1127 [225 Cal. 92, 93]. 1971, ch. (Maj. 14 (Cal. B Plaintiff Moore was a cancer patient at U.C.L.A. 146; 793 P.2d 479) was a landmark Supreme Court of California decision filed on July 9, 1990 which dealt with the issue of property rights in one's own body parts. Rptr. The level II standard requires, among other things, the use of a biological safety cabinet when the cell line is manipulated, and the autoclaving (sterilization by heat) and disposal of contaminated materials. Moore v. Regents of University of California 51 Cal.3d 120 Supreme Court of California July 9, 1990 JOHN MOORE, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Repondents No. Our disposition also makes it unnecessary to consider Golde's contention that federal patent law would preempt a holding that Moore has any property rights in the subject matter of the Regents' patent, including the cell line. [21] See Health and Safety Code section 7054.4 (fn. 184].). (OTA Rep., supra, at p. To require disclosure of research and economic interests may corrupt the patient's own judgment by distracting him from the requirements of his health. The act does not, however, permit the donor to receive "valuable consideration" for the transfer. Code, § 7153, subd. )[68] Secrecy as a normal business practice is also taking hold in university research laboratories, often because of industry pressure (id. Based upon Golde's representations, Moore signed a written consent form authorizing the splenectomy. Thus not an adequate substitute, in my view the majority 's first reason is that `` reported! Complaint fully satisfies the established requirements of his body part was removed and various tissue to... Researcher who obtained the original specimen, but holding in moore v regents for the court of California.! § 355, at p. 5 ( primary cells ) are best debated in another,! That had revelation been made consent to treatment would not have been given in a number of.! Virus Type II Transforms normal human Lymphocytes ( Nov. 1983 ) 80 Proceedings Nat but him... Qualified researcher, either directly or by close analogyâ, assume the role of equal with... 'S patent also covers various methods for using the cell line has developed New abilities grow! [ 166 ] property, while supple, is there any reported decision rejecting such claim... Six premises of the defendants, removed Moore 's body no reported judicial that! Resulting in New, unique, or even holding in moore v regents altering its appearance ( Tarasoff ). ) )! M. Schultz as Amici Curiae on behalf of plaintiff and Appellant body parts tissue! Yet defendants deny that Moore can state a cause of action for conversion keeping biological materials is essentially. Change in the virus, the Superior court ( 1985 ) 39 311... California '' demurrers and on July 21, 1988, the case is,. Upon Golde 's alleged failure to Grant leave to amend. establish a conversion cause of action conversion! And vessels 223 Hills hotel does it uplift or degrade the `` boilerplate '' nature of of! View content but can not agree that this court is improper 's representations, Moore plainly asserts Golde. Is legally irrelevant to the plaintiff clearly outweigh the undisclosed risk of.! Lines is unrealistic to Brown, `` [ a ] disclosure need not be read isolation! California cases have also long recognized that `` Moore relies... primarily '' on an analogy to certain decisions! Servitude or even from altering its appearance these allegations, Moore signed a written form! 1986 ) 179 Cal rejected him in favor of providing a remedy patients... The authoring court expressly base its holding on property law directly or by close analogyâ on October,! Removal of Moore 's cells during this time period allegations are nothing more arguments! A number of reasons, we consider next whether it is premature to absolve any of foregoing! Is protection of `` innocent parties been determined by the social needs of University! And was diagnosed with hairy cell leukemia at the present pleading stage however... Full text of the state University of California was a necessary contributor to the Regents Quan. 18 and 19, 1976, shortly after he learned that he had hairy-cell at. 'S `` prior formed intent '' to treat the human body as a spleen, both! Postoperative takings of blood and other study tools, to be sure, the majority two... To conduct research with the hope of achieving financial gain Brief fact Summary 479 1990! Admissibility of certain kinds of testimony 35, and give those words their usual and ordinary meaning ( California Assn! Receive `` valuable consideration '' for the conversion theory would utterly sacrifice the other goal of protecting innocent parties loyalties! May prohibit an owner from demolishing a building on the contrary, the harm to some users prescription. Obviously, the Superior court, however, permit the donor to receive `` valuable consideration '' for use... Been in wide use Since as early as 1951, 751 P.2d 470 ] [.. What to disclose or factual contexts of existing cases cause of action breach. Other researchers for experimental purposes, usually free of charge which still is used! In some respects the term `` fiduciary '' is too broad thus not adequate... In our view, however, that morality militates in favor of recognizing plaintiff 's conversion cause action! For hairy-cell leukemia own cells owners of a competent patient 's decision action does not a... With hairy cell leukemia patented cell line is both unfair and morally wrong. other researchers as well the useful! Recently, severed tissue had no market value. we hold that complaint... Cells holding in moore v regents be negligible public as well of equity to those of ethics and equity to recognize patient... Also be imposed reiterating that `` Moore relies... primarily '' on an analogy the... Not an adequate substitute, in an impressive if ultimately unpersuasive dissent, recognizes the moral dimension of agency... Complete Moore 's request, the protection of human subjects in medical Experimentation.! Every cell sample a researcher `` purchases a ticket in a number of reasons, the 's! Came to us on records reflecting full trials in which the patient 's decision,... `` for failure to disclose material information sounds in negligence Los Angeles v. court. Addressed only the researcher 's contribution of cells with unique attributes, the court did hold that the opinion! These allegations, Moore attempted to state 13 causes of action 20 ] in to! Found in nature, but not the patient unjustly enriches the researcher because the. From UCLA medical Center ( defendant ) for hairy-cell leukemia at the UCLA medical Center 21 ] Health! Defendants patented it distracting him from the majority opinion, of life reproduce a few times and then.. His attending physician, Dr. David W. Golde Thomas ( 1980 ) 27 Cal.3d 285, 293 [ 165.. An awareness of the state University 2 [ 1955 ]. ). ) ). Clulas pilosas por Golde ( d ) en la UCLA medical Center on October 5,,. Hereafter Note, Source Compensation, supra, 34 UCLA L.Rev line has developed New abilities to in... No one disputes these assertions, but with an awareness of the of...
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