State High Court to Decide Patients’ ‘Property Rights’ Over Their Blood, Tissue

The California Supreme Court, entering a novel legal and medical dispute, agreed Thursday to decide whether a patient retains a right to share in profits from commercial products made from his blood and tissue.

The justices, in a brief order, said they would hear an appeal by the University of California from a state appellate court ruling last July upholding a lawsuit seeking such a right by John Moore, a 43-year-old Seattle man successfully treated for leukemia at the UCLA Medical Center.

The precedent-setting nature of the case and its potentially far-reaching effects has attracted wide interest in the scientific and business communities.

Moore’s attorneys argued that he and other patients have a legally recognizable “property interest” that entitles them to retain ultimate control over the tissue, blood and other materials from their bodies.

Used in Product Development

These materials might ordinarily be considered waste but now, in the growing industry of biotechnology, they can be used in the development of products producing huge profits that should be shared with patients, the lawyers say.

Attorneys for the university and other defendants in the suit before the justices contend that the Court of Appeal should have left it to the Legislature to create such a commercial property right and that the ruling, unless overturned, could discourage medical research by creating doubt and confusion over the “ownership” of bodily materials.

Allen B. Wagner, counsel for the university, welcomed the court’s action Thursday, saying the appellate court’s decision, if not overturned, “could have a significant detrimental impact on UC’s effort to advance medical science and research.”

“The university has two duties--one to the individual patient and one to society as a whole,” Wagner said. “We have attempted to distinguish those two duties in a manner we feel is proper.”

Surprised at Move

Moore’s attorney, Sanford M. Gage of Los Angeles, said he was surprised by the justices’ agreement to hear the university’s appeal. “We thought the appeal court decision was very solid and sound and would be allowed to stand,” he said.

Gage disputed the university’s contention that the lower court ruling would have widespread impact. “That decision didn’t mean that in every research project, there is going to be a legal problem,” the attorney said. “This situation will occur only when a patient has unique properties . . . not to the generic situation where thousands of patients are involved.”

Moore was treated at the UCLA Medical Center 12 years ago. During that treatment, Moore’s spleen was removed with his consent and it was determined that his cells were unique in protecting against the disease.

Dr. David W. Golde, a hematologist-oncologist, and Shirley G. Quan, his research associate at UCLA, used the process of genetic engineering to develop a cell-line--a culture of cells with uniform characteristics--from Moore’s blood and tissues.

sh Worth About $3 Billion

Later, the university, Golde and the researcher patented the cell-line for use in developing a new drug believed capable of helping treat cancer and AIDS. Commercial arrangements then were made with manufacturers to produce products predicted to be worth about $3 billion in 1990.

In 1984, Moore, after learning about the research, brought suit claiming that the university, Golde and Quan wrongly used his blood and tissue to develop the cell-line without obtaining his consent, informing him of its commercial value or offering to share in the profits.

A Los Angeles Superior Court judge dismissed the suit in 1986 but last July, the state Court of Appeal ruled 2 to 1 that Moore’s blood and tissue were his own property and that he was entitled to go to trial to seek a share of the profits from any products produced from his bodily materials.

‘Invasion of Human Privacy’

“A patient must have the ultimate power to control what becomes of his or her tissues,” Los Angeles Superior Court Judge David M. Rothman, sitting by special assignment, said in an opinion joined by Appellate Justice Arleigh M. Woods. “To hold otherwise would open the door to a massive invasion of human privacy and dignity in the name of medical progress.”

In dissent, Appellate Justice Ronald M. George contended that Moore’s extracted blood and tissue should not be considered property--and that even if it was, he had abandoned any right to it.

George expressed concern that the appellate ruling could encourage the marketing of “used body parts” as patients with unusual bodily substances “shop around” for buyers.

In their subsequent appeal to the justices, lawyers for the university and other defendants in the suit argued that the cell-line was properly developed from Moore’s discarded spleen and that when patients consent to the removal of such organs, they are also agreeing to the organs’ disposal or use in research.