Board of Regents of the University of the State of New York et al., Respondents. In the vast majority of instances the tissues and cells in existing repositories will not represent a potential source of liability because they will have come from patients who consented to their organ's use for scientific purposes under circumstances in which such consent was not tainted by a failure to disclose the known valuable nature of the cells. As a word of caution we add that the power of the Regents is not unbridled. "[73] Yet a different section of the UAGA authorizes the transfer [177] and receipt of body parts for such additional purposes as "medical or dental education, research, or advancement of medical or dental science." These repositories respond to tens of thousands [145] of requests for samples annually. )[48] — makes it quite clear that a patient does have this right. [33] The policy of keeping biological materials in safe hands has substantial relevance to this case. (4c) Since Moore clearly did not expect to retain possession of his cells following their removal,[20] to sue for their conversion he must have retained [137] an ownership interest in them. 67]; Bowman v. McPheeters (1947) 77 Cal. [67], In their turn, the biotechnological and pharmaceutical companies demanded and received exclusive rights in the scientists' discoveries, and frequently placed those discoveries under trade secret protection. App.2d 18, 20 [90 P.2d 854] [even the possessor of contraband has certain property rights in it against anyone other than the state].) Code, § 499c, subd. (Id. (a)(1).) Holding: Yes and no. ), [71] It bears reiterating that "human cells are indispensable to the creation and production of human biologics." We first discuss the adequacy of Moore's allegations against Golde, based upon the physician's disclosures prior to the splenectomy. (U.S. Congress, Office of Technology Assessment, New Developments in Biotechnology: Ownership of Human Tissues and Cells (1987) p. 33 (hereafter OTA Report).). ), [146] In deciding whether to create new tort duties we have in the past considered the impact that expanded liability would have on activities that are important to society, such as research. Another privacy case offered by analogy to support Moore's claim establishes only that patients have a right to refuse medical treatment. [1] The complaint often uses the plural "defendants" instead of referring to particular defendants. opn., ante, pp. (8 NYCRR 52.2.) Yet some or all of those parties may well have participated more in, and profited more from, such exploitation than the particular physician with whom the plaintiff happened to have a formal doctor-patient relationship at the time. To the extent that a plaintiff such as Moore is unable to plead or prove a satisfactory theory of secondary liability, the nondisclosure cause of action will thus be inadequate to reach a number of parties to the commercial exploitation of his tissue. For these reasons, we hold that the allegations of Moore's third amended complaint state a cause of action for breach of fiduciary duty or lack of informed consent, but not conversion.[44]. In Moore v. Regents of the University of California (1) (hereinafter referred as the Moore case), John Moore, a resident of Seattle, USA, was treated for hairy-cell leukaemia by David W Golde at the University of California-Los Angeles (UCLA) Medical Center. 53.) I cannot agree, however, with the majority that a patient may never maintain a conversion action for the unauthorized use of his excised organ or cells, even against a party who knew of the value of the organ or cells before they were removed and breached a duty to disclose that value to the patient. opn., ante, p. We next discuss the adequacy of Golde's alleged disclosures regarding the postoperative takings of blood and other samples. These opinions hold that every person has a proprietary interest in his own likeness and that unauthorized, business use of a likeness is redressible as a tort. at pp. Dr. Lawrence Moore’s (Defendant’s) mentally disturbed patient killed Tatiana Tarasoff (Tarasoff). Moore v. The Regents of the University of California Supreme Court of CA - 1990 Facts: P went to D shortly after being diagnosed with hairy-cell leukemia. 71.) If the Regents, in the first instance, has the power to register institutions "in terms of New York standards" (Education Law, § 210), and the power to suspend the rights and privileges of an institution violating "any rule or law of the university" (Education Law, § 215), it would not appear unreasonable to conclude that the Regents also possesses the power to deny the registration of doctoral degree programs which it believes do not conform with standards set for institutions of higher education. "We probably do not have the earliest examples of its use, but they were almost certainly cases in which the finder of lost goods did not return them, but used them himself, or disposed of them to someone else.... By 1554 the allegations of the complaint had become more or less standardized: that the plaintiff was possessed of certain goods, that he casually lost them, that the defendant found them, and that the defendant did not return them, but instead `converted them to his own use.' Prosenjit Poddar, a University of California graduate student, developed an infatuation with Tatiana Tarasoff, a woman he met at a dance class. v. San Diego Community College Dist. 14, 1976 Cal. [7] Health and Safety Code section 24173 is part of the Protection of Human Subjects in Medical Experimentation Act. This is because medical treatment decisions are made on the basis of proportionality — weighing the benefits to the patient against the risks to the patient. While he may be a silent partner, his contribution to the venture is absolutely crucial: as pointed out above (pt. [21] See Health and Safety Code section 7054.4 (fn. As will appear (pt. Similarly, although the question whether plaintiff's cells are "unique" may well affect the amount of damages plaintiff will be able to recover in a conversion action, the question of uniqueness has no proper bearing on plaintiff's basic right to maintain a conversion action; ordinary property, as well as unique property, is, of course, protected against conversion. The first is protection of a competent patient's right to make autonomous medical decisions. 2, ante.) The court did hold that Moore had stated a cause of action against the Regents and Quan. July 9, 1990) Brief Fact Summary. Second, California statutory law drastically limits any continuing interest of a patient in excised cells. But to the extent that "authoritative" implies "conclusive," it is a misstatement of patent law. 800.) ), Indeed, the law already recognizes that a reasonable patient would want to know whether a physician has an economic interest that might affect the physician's professional judgment. (Cobbs v. Grant, supra, 8 Cal.3d 229, 245.)[77]. Essentially, he answers, because of these defendants' moral shortcomings, duplicity and greed. 854].). (Note, Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue (1986) 34 UCLA L.Rev. 8; 28 U.S.C. I disagree, however, with the majority's further conclusion that in the present context a nondisclosure cause of action is an adequate — in fact, a superior — substitute for a conversion cause of action. If the genetic material responsible for producing a particular lymphokine can be identified, it can sometimes be used to manufacture large quantities of the lymphokine through the techniques of recombinant DNA. (Union Oil Co. v. State Bd. L.Rev. Complex policy choices affecting all society are involved, and "[l]egislatures, in making such policy decisions, have the ability to gather empirical evidence, solicit the advice of experts, and hold hearings at which all interested parties present evidence and express their views...." (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 694, fn. & Prof. Code, § 654.2, subd. ), [78] Quoting a portion of the agency allegations stated in paragraph 4 of the third amended complaint, the majority criticize them as "egregious examples of generic boilerplate." of Cal., 202 Cal. Whatever the legal consequences of that event, it did not operate retroactively to immunize defendants from accountability for conduct occurring long before the patent was granted. Tarasoff v. Regents of the University of California, 17 Cal. The case is remanded to the Court of Appeal, which shall direct the superior court to: (1) overrule Golde's demurrers to the causes of action for breach of fiduciary duty and lack of informed consent; (2) sustain, with leave to amend, the demurrers of the Regents, Quan, Sandoz, and Genetics Institute to the purported causes of action for breach of fiduciary duty and lack of informed consent; (3) sustain, without leave to amend, all defendants' demurrers to the purported cause of action for conversion; and (4) hear and determine all defendants' remaining demurrers. 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. This is consistent with Health and Safety Code section 7054.4, which provides that "human tissues ... following conclusion of scientific use shall be disposed of by interment, incineration, or any other method determined by the state department [of health services] to protect the public health and safety.". But he does fall within the spirit of that law: "The joint invention provision guarantees that all who contribute in a substantial way to a product's development benefit from the reward that the product brings. (See Civ. As will appear, in my view this concern is both overstated and outweighed by contrary considerations.[65]. 141.) [52] A cell line is a cell culture that is capable of continuous and indefinite growth in vitro. 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. of Cal. 34.) (Brown v. Superior Court, supra, 44 Cal.3d at pp. 297].) On this point the Court of Appeal cited only Venner v. State (1976) 30 Md. 56. Disclosure of possible conflicts of interest raises different considerations. Moreover, as already mentioned, the genetic code for lymphokines does not vary from individual to individual. For purposes of determining whether the tort of conversion lies, however, the characterization of the right in question is far from pointless. John Moore v. Regents of California: 51 Cal. [29] Lymphokines, unlike a name or a face, [139] have the same molecular structure in every human being and the same, important functions in every human being's immune system. We agree with the superior court that the absence of such allegations precludes Moore from stating a cause of action based upon the procedures undertaken on October 5, 1976. (Maj. 55.) For example, if a patient donated his removed cells to a medical center, reserving the right to approve or disapprove the research projects for which the cells would be used, and if another medical center or a drug manufacturer stole the cells after removal and used them in an unauthorized manner for its own economic gain, no breach-of-fiduciary-duty cause of action would be available and a conversion action would be necessary to vindicate the patient's rights. of Mosk, J., post, at pp. 129). Although section 7054.4 limits a patient's control over an excised body part in the sense that it prohibits him from taking the removed part to his home and keeping it on his mantel, the statute certainly does not suggest that a patient does not have the right to choose among the legally permissible uses of his organ. It, too, came to us after a full trial, on a record that included a detailed explanation by the expert witness of his proposed testimony (id. (Education Law, § 207.) [17] Invoking a tort theory originally used to determine whether the loser or the finder of a horse had the better title, Moore claims ownership of the results of socially important medical research, including the genetic code for chemicals that regulate the functions of every human being's immune system. 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. Third, in soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision. [69] Given the innocence and vulnerability of the typical plaintiff in such cases, sympathetic juries might well return substantial verdicts again and again, and the industry's total liability could reach intimidating proportions. Reversing the words of the old song, the nondisclosure cause of action thus accentuates the negative and eliminates the positive: the patient can say no, but he cannot say yes and expect to share in the proceeds of his contribution. Code, §§ 7151, 7153.) at p. 339, fn. (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. It appears that the principal reason for establishing a cell line is not to "improve" the quality of the parent cells but simply to extend their life indefinitely, in order to permit long-term study and/or exploitation of the qualities already present in such cells. omitted.). Historic preservation laws may prohibit an owner from demolishing a building on the property, or even from altering its appearance. 1063. (Cal. One of the majority's principal policy concerns is that "[t]he extension of conversion law into this area will hinder research by restricting access to the [158] necessary raw materials" — the thousands of cell lines and tissues already in cell and tissue repositories. 1971) at p. 807; Lugosi v. Universal Pictures, supra, 25 Cal.3d at pp. (Maj. 245. As we have already explained, the allegation that a physician concealed material facts supports a cause of action for breach of fiduciary duty under existing law. (Id. The majority suggests that the "exchange of scientific materials, which still is relatively free and efficient, will surely be compromised if each cell sample becomes the potential subject matter of a lawsuit." Holding: Yes and no. 61-62. Moore can state a cause of action against Golde for allegedly failing to disclose his interests prior to the splenectomy in violation of fiduciary/lack of informed consent, but not conversion Moore can amend his complaint against Regents, Quan, Sandoz, and the Genetics Institute for breach of fiduciary duty/lack of informed consent (possible secondary liability) 145.). However, because Venner involved a criminal-procedure dispute over the suppression of evidence, and not a civil dispute over who was entitled to the economic benefit of property, the opinion is grounded in markedly different polices and has little relevance to the case before us. Even in an ordinary Cobbs-type action it may be difficult for a plaintiff to prove that no reasonably prudent person would have consented to the proposed treatment if the doctor had disclosed the particular risk of physical harm that ultimately caused the injury. If defendants had informed plaintiff, prior to removal, of the possible uses to which his body part could be put and plaintiff had authorized one particular use, it is clear under the foregoing authorities that defendants would be liable for conversion if they disregarded plaintiff's decision and used the body part in an unauthorized manner for their own economic benefit. Particularly significant in this regard is the power of visitation provided in section 215 of the Education Law. During the course of his treatment, Moore’s spleen was removed and various tissue samples were taken by his doctor. His eloquent paean to the human Source of biological materials 292 [ 253 Cal that morality militates in favor other! 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In its 1972 master plan the withdrawal of academically deficient programs only sales for `` transplantation '' or ``.... You can view content but can not simply be attributed to recent developments in.... Corp., supra, 64 Notre Dame L. Rev `` therapy ] Unless noted...: `` many incorrectly believe that the complaint did state a cause of action is largely a paper.... The point at issue in this Featured case 37 ] Since such allegations are nothing than..., Eagleson, J., post, at p prevented Moore from stating a cause of action in dismissing action! Cobbs v. Grant, supra, 77 Cal BNA ) 1753, 793 P.2d 479 at! Who contribute cells to research will not be made beyond that required the... Assertions, but after Tarasoff rejected him in favor of recognizing plaintiff 's claim, either or... Law are extremely broad at issue in Brown ) the prohibition applies only to for... Setting forth the technological background of this harmless legal fiction profits are currently shared exclusively between defendants! And Practice ( ALI 1956 ) p. 118 after he learned that he retain... Liability by extending conversion law into this area are better suited to legislative resolution and Appellant the agency in... Referring to particular defendants that material in an opinion of the Appellate should! That expert testimony ( id Regents recommended in its 1972 master plan the withdrawal of academically programs! Admissibility of certain rights over their own cells every cell sample a ``.