Case Argues Rights Over Tissue Used in Research : Supreme Court: The state justices consider a claim that patient should share in profit from work using his diseased spleen.
The state Supreme Court, hearing a pivotal case from the emerging field of biotechnology, was asked Tuesday to grant medical patients a broad new right to share in profits from the commercial use of their bodily tissues.
The lawyer for a leukemia survivor whose cancerous spleen was removed and used in research urged the justices to open the way for a landmark lawsuit that pits a patient’s claim over surgically removed organs against the asserted interests of scientific research.
The suit charges that the UCLA Medical Center and a surgeon, a researcher and two private firms wrongly used the patient’s personal property to develop a process that could produce an anti-cancer drug worth an estimated $3 billion.
“What was taken from this patient was his property,” said the patient’s attorney, Sanford M. Gage of Los Angeles. “They recognized they were going to perform experimentation that was unrelated to any therapeutic purpose. . . . They had a duty to be honest with him and not deceive him.”
Lawyers for the defendants argued that the case should not be allowed to go to trial. The patient’s diseased spleen, removed in a life-saving operation, was valueless--and the patient retained no rights to it, they said. Allowing liability for damages for the unauthorized use of such tissue, they warned, would stifle medical research and development.
“If anything had value, it was what the researchers created,” said Anthony Murray of Los Angeles, attorney for the physician. “It’s not like they were tapping a maple tree, making maple syrup and then selling the syrup.”
The justices, meeting in Los Angeles, fired a barrage of questions at the six attorneys in a case that has drawn wide attention in the scientific and commercial world. Other biotechnology products already have been approved for treatment of hemophilia, diabetes and other maladies, and research is under way for products to treat cancer, AIDS and multiple sclerosis. A decision in the case is due within 90 days.
The dispute arose after John Moore, a 44-year-old Seattle man, underwent removal of his spleen at UCLA in 1976. The surgeon, Dr. David W. Golde, and a researcher, Shirley G. Quan, found in examining the spleen that Moore’s cells were unique. Through the use of genetic engineering, Golde and the researcher developed a cell line, a culture of cells, capable of producing valuable pharmaceuticals.
The university, physician and researcher patented the process and entered into contracts with Sandoz Pharmaceutical Corp. and the Genetics Institute Inc. to develop products. Golde received Genetics stock that Moore’s lawyer says is now worth $3 million--and the physician and the university received $440,000 in research grants from the two firms. An anti-cancer drug produced from the research is undergoing clinical testing.
Moore, in his suit, said that while he had given his consent for the operation, he had not been properly informed that the surgically removed tissue could be used in profit-producing medical research. He said that after the operation, the medical center and physician continued to take tissue samples for use in their research without informing him of their purpose.
The defendants won a dismissal of the case in 1986 in Los Angeles Superior Court. But a state Court of Appeal, by a vote of 2 to 1, reinstated the suit, saying that barring it would open the door to a “massive invasion of human privacy and dignity in the name of medical progress.”
In Tuesday’s 70-minute hearing, several court members implied in their questioning that while Moore may not be entitled to assert a broad-ranging property right, he should have the chance to prove he did not give “informed consent” to the operation because the defendants improperly failed to reveal their research plans. Justice Stanley Mosk, for one, suggested there might have been an “element of deception” in the way medical authorities dealt with Moore.
Murray, representing Dr. Golde, said it was impossible to assess the potential research value of the tissue until after it was removed and that there was no proof the hospital or physician misrepresented themselves to Moore. State statutes, the attorney noted, specifically allow the scientific use of discarded tissue.
“Absolutely nothing was concealed from this man--there was no intent to trick him,” said Murray. “He said, ‘Take it out; it’s got cancer.’ . . . Now he’s saying, ‘No, you can’t do any research unless you pay me.’ ”
Allen B. Wagner, counsel for the university, defended the actions of the medical center, saying it was serving a dual purpose of treating a patient and meeting its obligation to perform research for public benefit.
“The most significant concern to the university is its ability to continue medical research, without the intrusion of the private interests of the patient,” said Wagner.
Moore, who currently heads a soft drink firm in Seattle, watched the argument from a courtroom seat. Afterward, he expressed confidence that he would win the case, and he denied that the victory would impede medical science.
He declined to speculate on how much he might eventually collect. “The issue here is establishing the rights of patients--not a gold mine for the future,” Moore said.
