Patient’s Blood, Tissue Belong to Him, Court Says
A patient’s blood and tissues are his personal property, and he may have a right to share profits on commercial products genetically engineered from them, a state Court of Appeal ruled Thursday in an unprecedented case.
It was the first time that a court has ruled that a person has a “property interest” in his blood and tissues. Those items are not listed in the California laws defining property.
In a 2-1 decision, the court reinstated a civil suit by John Moore, 43, a Seattle sales manager, against the UC Board of Regents and the UCLA Medical Center, where Moore had been successfully treated for leukemia.
“They came down the way we wanted,” said Moore’s attorney, Sanford Gage, who learned of the decision while on vacation in Hawaii.
“We are very pleased with the decision of the court because this is a case of first impression, and it does completely uphold the fundamental right of a patient to control his or her own body and to be free of commercial exploitation. . . .”
Moore’s blood was found to have unique properties that offered some protection against leukemia, which researchers hope can eventually be used to treat cancer and acquired immune deficiency syndrome.
Hematologist-oncologist Dr. David W. Golde and the university have patented a cell line developed from Moore’s blood, although their attorneys stress that no one has made any money from it so far.
Failed to Obtain Consent
The majority of the three-judge 2nd District Court panel, Los Angeles Superior Court Judge David M. Rothman sitting by special appointment and Justice Arleigh M. Woods, agreed in a 53-page opinion that Moore’s claim that the university failed to obtain his consent or share profits for the commercial cell line should be allowed to proceed to trial.
“We have been cited no legal authority, public policy, nor universally known facts of biological science concerning the particular tissues referred to in this pleading which compel a conclusion that (Moore) cannot have a sufficient legal interest in his own bodily tissues amounting to personal property,” wrote Rothman with Woods’ concurrence.
Justice Ronald M. George, in a 22-page dissent agreeing with the trial court’s dismissal of the suit, said the patient’s extracted blood and tissue should not be considered property. Even if it was, he said, Moore had abandoned it.
George also said he believed that Moore would be unable to establish any specific damages because the blood was worthless until Golde and others applied their expertise. George compared Golde’s work with the blood to a sculptor creating a valuable piece of art from a lump of clay.
Golde’s attorney, Anthony Murray, said he had not yet read the lengthy opinion, so he could not discuss it in detail, but that “the probability is that we will go to the Supreme Court with it.”
Murray and attorneys for the university would ask the state’s top court to review and reject the appellate ruling, and to uphold the trial court’s dismissal of the case.
Closely Watched Case
Although the case has been watched by genetic engineers and their lawyers throughout the country, Rothman and Woods cautioned: “Since it is not possible to foresee all of the implications of our decision, judicial determinations will be necessary on a case-by-case basis.
“A scientific revolution of this magnitude may also compel legislative intervention.”
Moore’s attorney, Gage, who claims that the products created from Moore’s blood and spleen could be worth “billions of dollars,” had argued that Moore consented to removal of his spleen Oct. 20, 1976, a common therapy for leukemia, but never received or signed any consent forms for periodic removal of blood over the next seven years. Gage also claimed that the university and researchers improperly failed to get Moore’s permission to sell his blood and tissues.
Murray had argued that the cell line (a culture of cells with uniform characteristics) was developed solely from Moore’s spleen. He said a patient’s consent to remove an organ includes consent to dispose of the organ or to use it for research.
“A patient must have the ultimate power to control what becomes of his or her tissues,” the appellate court stated. “To hold otherwise would open the door to a massive invasion of human privacy and dignity in the name of medical progress.”
