Court Backs Doctors’ Right to Use Patient Tissues

The Supreme Court on Monday let stand the ruling of a California court that a hospital patient does not own rights to tissues taken from his body, even if they prove immensely valuable to scientists.

The high court action ends a financial threat to the burgeoning field of biotechnology. By genetically altering human cells, medical researchers have been able to produce new treatments for a variety of ailments including cancer, diabetes, hepatitis and ulcers.

But John Moore, a Seattle cancer patient who was treated at the UCLA Medical Center in 1976, contended that he should share in the profits from diseased cells that were taken from his spleen.

Last year, the state Supreme Court rejected that claim. The U.S. Supreme Court did the same Monday.

But the decisions do not leave patients helpless against exploitation. The California courts ruled that doctors have a duty to disclose to patients their research endeavors and to obtain their consent for any treatment.

Moore’s case now goes back to a Los Angeles court to determine whether UCLA doctors properly disclosed their research plans.

Not surprisingly, attorneys on both sides of the case (Moore vs. Regents of the University of California, 90-1037) saw it differently.

Sanford M. Gage, a Beverly Hills lawyer who represented Moore, said he will try to show that UCLA doctors failed to tell Moore they could benefit from removing cells from his body. Because of this failure, they should have to pay him damages, he said.

“Don’t write us off yet. This was a landmark decision (on disclosure) and it still stands,” Gage said.

But Anthony Murray, an attorney who represented a UCLA doctor, said the high court action essentially ends the case.

“The doctor did not know, and could not know, there was anything commercially valuable in his spleen until after it had been removed,” he said.

Only then did Dr. David Golde, head of the division of hematology and oncology at the UCLA Medical Center, realize that Moore’s cells were unusual and could be altered to produce a substance that bolsters the immune system, he said.

Moore’s spleen was removed because it was cancerous, attorney Murray said. “Yet he wanted to profit from the ingenuity of the scientists who saved his life,” he said.

The Moore case gained wide attention in 1988 when a state appeals court ruled that a patient’s tissues and blood remain his property after they are removed from his body.

“A patient must have the ultimate power to control what becomes of his or her tissues,” the appeals court said. “To hold otherwise would open the door to a massive invasion of human privacy and dignity in the name of medical progress.”

While that ruling protected patients’ rights, scientists and pharmaceutical firms said that it threatened to undercut biomedical research that would save patients in the future.

In July, the state Supreme Court agreed on a 5-2 vote. Allowing patients to sue over their cells would create a “litigation lottery” for any scientist who used blood or tissues in his or her research, the state justices said.

But the decision was not a total loss for Moore. The state Supreme Court also said: “We hold that a physician who is seeking a patient’s consent for a medical procedure must . . . to obtain (his) informed consent, disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect his medical judgment.”

Moore’s attorneys urged the U.S. Supreme Court to revive his claim based on property rights but the justices rejected the claim without comment.

Moore, now 45, is still living in Seattle and his leukemia is in remission.

Meanwhile, the high court refused to hear a challenge to a California anti-loitering law intended to protect schoolchildren.

The law designates as a vagrant anyone who loiters around any school or public place where children normally congregate and refuses to leave after being asked.

Leonard McSherry, who had previously been convicted of kidnaping and lewd conduct, was charged with loitering at several Long Beach schools. He was sentenced to two years in jail.

He contended in a federal court suit that his conviction should be thrown out because the law was vague and because he had never been asked to leave. But the lower courts ruled that his loitering around the school amounted to a violation of the law.

Only Justices Byron R. White and Thurgood Marshall voted to hear the appeal of the case (McSherry vs. Block, 90-6193).