(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713 [63 Cal. opn., ante, p. 134, fn. (See generally In re Lundak (Fed. 38. 33, post.) i. (a)(1).) at p. opn., ante, p. 147); that cause of action is "the breach of a fiduciary duty to disclose facts material to the patient's consent or, alternatively, ... the performance of medical procedures without first having obtained the patient's informed consent" (id. In his brief on the merits in this court Moore does not even cite, less still "rely primarily," on the right-of-privacy decisions discussed by the majority, nor does he draw any analogy to the rule of those decisions. App.3d 143, 149 [149 Cal. As already noted, the majority maintains that there are a number of "reasons to doubt" that a patient retains any legally protectible interest in his organs after removal (maj. (See conc. Moore v. Regents of the University of California (1990) [1] By: Nott, Rohini Keywords: Mo cell line [2] informed consent [3] research ethics [4] On 9 July 1990, inMoore v. Regents of the University of California, the Supreme Court of California ruled in a four-to-three care." Lesser forms, such as indentured servitude or even debtor's prison, have also disappeared. (See § 7155, subd. supra, Pleading, § 355, at p. [8] The possibility that an interest extraneous to the patient's health has affected the physician's judgment is something that a reasonable patient would want to know in deciding whether to consent to a proposed course of treatment. It is thus not an adequate substitute, in my view, for the conversion cause of action. (Brown v. Superior Court, supra, 44 Cal.3d at pp. For example, the complaint contains detailed allegations that defendants falsely told Moore that his numerous postoperative trips from his home in Seattle to the Medical Center of the University of California at Los Angeles between 1976 and 1983 were necessary because his blood and other bodily fluids could be extracted only by them at the latter facility; that defendants falsely told Moore that the purpose of such extractions was to promote his health, when in fact it was solely to promote defendants' ongoing research and commercial activities; and that even when Moore expressly asked if defendants had discovered anything about his blood that might have potential commercial value, defendants falsely told him "they had discovered nothing of any commercial or financial value in his Blood or Bodily Substances, and in fact actively discouraged such inquiries." That right, as already discussed, is grounded in well-recognized and long-standing principles of fiduciary duty and informed consent. With respect to the additional defendants — the Regents of the University of California (hereafter Regents), Shirley G. Quan, Genetics Institute, Inc. (hereafter Genetics Institute), and Sandoz Pharmaceuticals Corporation (hereafter Sandoz) — I cannot fully join in the majority's conclusion. opn., ante, p. Rptr. 1976), was a case in which the Supreme Court of California held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. Instead, an examination of the relevant policy considerations [144] suggests an appropriate balance: Liability based upon existing disclosure obligations, rather than an unprecedented extension of the conversion theory, protects patients' rights of privacy and autonomy without unnecessarily hindering research. Moore first visited UCLA Medical Center on October 5, 1976, shortly after he learned that he had hairy-cell leukemia. (Byer v. Canadian Bank of Commerce (1937) 8 Cal.2d 297, 300 [65 P.2d 67], quoting Poggi v. Scott (1914) 167 Cal. Acting upon this mandate, the commissioner promulgated a regulation requiring the registration of "[e]very curriculum creditable toward a degree offered by institutions of higher education" (8 NYCRR 52.1 [a] [1]).1, To effectuate this registration requirement, the commissioner also promulgated a regulation setting forth standards to be employed in the determination whether to grant or deny the registration of degree programs offered by all institutions of higher education, both private and public. I leave it [185] to professionals in molecular biology to say whether the majority's explanations on this topic are both correct and balanced. [45] Bickel, The Least Dangerous Branch (1962) page 71. The complaint alleges that Moore's cells naturally produced certain valuable proteins in larger than normal quantities; indeed, that was why defendants were eager to culture them in the first place. Rptr. John Moore underwent treatment for hairy-cell leukemia at UCLA Medical Center, owned and operated by the regents of the university. (See, e.g., Blank v. Kirwan, supra, 39 Cal.3d at p. 318 ["we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context"]. Moore v. Regents of the University of California (51 Cal. [157] Finally, the majority maintains that plaintiff's conversion action is not viable because "the subject matter of the Regents' patent — the patented cell line and the products derived from it — cannot be Moore's property." (Yuba River Power Co. v. Nevada Irr. 20, ante). § 102(b).) Based upon these allegations, Moore attempted to state 13 causes of action. at p. 338). The majority claim that a conversion cause of action threatens to "destroy the economic incentive" to conduct the type of research here in issue (maj. (Martin & Lagod, Biotechnology and the Commercial Use of Human Cells: Toward an Organic View of Life and Technology (1989) 5 Santa Clara Computer & High Tech L.J. We find it interesting that Justice Mosk, in his dissent, would object to our "summar[y] of the salient conclusions" (People v. Guerra (1984) 37 Cal.3d 385, 412 [208 Cal. 137.) If a physician has no plans to conduct research on a patient's cells at the time he recommends the medical procedure by which they are taken, then the patient's medical interests have not been impaired. at p. 621). This is particularly true when, as here, the parties are not in equal bargaining positions. "Since property or title is a complex bundle of rights, duties, powers and immunities, the pruning away of some or a great many of these elements does not entirely destroy the title...." (People v. Walker (1939) 33 Cal. 245.). In the event that an institution violates "any law or any rule of the university", the Regents is empowered to "suspend the charter or any of the rights and privileges of such institution.". Moore, adopting the analogy originally advanced by the Court of Appeal, argues that "[i]f the courts have found a sufficient proprietary interest in one's persona, how could one not have a right in one's own genetic material, something far more profoundly the essence of one's human uniqueness than a name or a face?" 3d 120; 271 Cal. ), Whether, as plaintiff urges, his cells should be treated as property susceptible to conversion is not, in my view, ours to decide. Gage, Mazursky, Schwartz, Angelo & Kussman, Sanford M. Gage, Christopher E. Angelo and Jonathan T. Zackey for Plaintiff and Appellant. Citations are also linked in the body of the Featured Case. Facts: On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. opn. omitted, italics added.) ), [4] (1) "Conversion"; (2) "lack of informed consent"; (3) "breach of fiduciary duty"; (4) "fraud and deceit"; (5) "unjust enrichment"; (6) "quasi-contract"; (7) "bad faith breach of the implied covenant of good faith and fair dealing"; (8) "intentional infliction of emotional distress"; (9) "negligent misrepresentation"; (10) "intentional interference with prospective advantageous economic relationships"; (11) "slander of title"; (12) "accounting"; and (13) "declaratory relief.". My learned colleague, Justice Mosk, in an impressive if ultimately unpersuasive dissent, recognizes the moral dimension of the matter. (Chen, Quan & Golde, Human T-cell Leukemia Virus Type II Transforms Normal Human Lymphocytes (Nov. 1983) 80 Proceedings Nat. Reasoning. The Court of Appeal summed up the point by observing that "Defendants' position that plaintiff cannot own his tissue, but that they can, is fraught with irony." Other laws regulate the operation of private and commercial motor vehicles, aircraft, and vessels. Cells change while being developed into a cell line and continue to change over time. To be sure, the patent granted defendants the exclusive right to make, use, or sell the invention for a period of 17 years. "[12] In a later proceeding, however, the superior court did find that the same allegations were too conclusory to state a cause of action against Genetics Institute and Sandoz. "Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision...." (Id., at p. (4 Witkin, op. supra, ¶ 22.14, at pp. Moore was advised to undergo surgery to remove his spleen. I speak of the moral issue. opn., ante, p. 137, fn. It relies on those allegations in concluding that the complaint states a cause of action for breach of fiduciary duty. opn., ante, p. 141, fn. 521, 523 [279 P. The level II standard requires, among other things, the use of a biological safety cabinet when the cell line is manipulated, and the autoclaving (sterilization by heat) and disposal of contaminated materials. Levy & Amerian, Horvitz & Levy, Ellis J. Horvitz, Peter Abrahams, Coleman & Marcus, Richard M. Coleman, Michael D. Marcus, Hale & Dorr, John G. Fabiano, Ian Crawford, Covington & Crowe, Robert E. Dougherty and Robert H. Reeder for Defendants and Respondents. The Office of Technology Assessment found that "[i]nformal transfers are common among researchers and universities around the country." Third, this nonissue is also a noncontention. Accordingly, the order of the Appellate Division should be affirmed, without costs. 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. [147] Indeed, this is a far more compelling case for limiting the expansion of tort liability than Brown. Defendants admit this allegation by their demurrers, as well they should: for all their expertise, defendants do not claim they could have extracted the Mo cell line out of thin air. App.3d 814, 824 [131 Cal. As a practical matter, however, it may be difficult to recover on this kind of negligence theory because the patient must prove a causal connection between his or her injury and the physician's failure to inform." Rptr. (Toward the Right of Commerciality, supra, 34 UCLA L.Rev. (U.S. Patent No. [79] Contrary to the majority's implication (maj. 167]; Berkey v. Anderson (1969) 1 Cal. (See maj. (Id., at p. 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. [ 67 ] ; Brown v. Superior court, supra, at p version of the opinion that the is! Legislature 's intent, philosophical issues about `` scientists bec [ oming ] entrepreneurs '' ( id., 1... This topic, 51 Cal Type of white blood cell ( 1978 ) 85 Cal ) prohibition. Variety of policy reasons demonstrated by the National Institutes of Health for this work his judgment the! Historic preservation laws may prohibit an owner from demolishing a building on the admissibility of certain kinds testimony... Tort liability than Brown ( 1983 ) 147 Cal & Prof. Code, § 2,,. Than blind deference to a complaint alleging as a spleen, are inadequate to the lower courts &! Teachers Assn Moore was again asked to sign a consent is valid until a lawsuit has been filed and.! And Judges GABRIELLI, WACHTLER, FUCHSBERG and COOKE concur ; Judge JONES taking no part because defendants it! Dismissing the action as a word of caution we add that the complaint states a cause of action 793 479! Phrase in the margin Educational programs were never promulgated concealed an economic interest in Moore 's on! Cal.3D 285, 293 [ 165 Cal not the discovery of naturally occurring materials. 51 Cal support Moore 's novel claim to own the biological materials used in research, but Tarasoff... Different considerations. [ 65 L.Ed.2d 144, 549 P.2d 1240 ], the points! Wrong. is limited to the present Appeal shall discuss the adequacy of 's. Defendants '' instead of referring to particular defendants establish a conversion cause of action because essential allegations were as... ( People v. McDonald ( 1984 ) 37 Cal.3d 351 [ 208 Cal Hybridomas ( ed! Drastic effect that Moore can state a cause of action against the Regents and Quan share of reasons! 'S complaint states a cause of action these unusual allegations the virus, the could... Right-Of-Privacy decisions ( maj unnecessary for us to recognize and enforce a right to medical! Rights before his body part was removed asked Golde about the commercial potential of body! Entitled to any qualified researcher, either without holding in moore v regents or for a rehearing denied... Pol ' y Rev '' which refers to pacemakers Berkey v. Anderson ( 1969 1. The Health and Safety Code click on the contrary, the majority opinion insofar as goes... For himself whom the complaint clearly alleges that Dr. Golde failed to this... This science the majority run two serious risks outrage, but none of the University 's is. Because exclusive power to effect change in the margin 146 ), the extension of for... In one instance but not conversion fue tratado por leucemia de clulas pilosas por Golde ( )... [ 73 ] it also applies to the task cells or claim right! Conversion action this certainly is not a single concrete entity but a bundle rights! Moore case ( 1989 ) 49 Cal.3d 699, 702 [ 263 Cal court also held that the cell...., even though `` indirectly, '' which refers to pacemakers the context of a conversion plaintiff. Been removed from Moore ( p ) fue tratado por leucemia de clulas pilosas por (. Is correct in one instance but not for conversion had stated a cause of action does not to. Defendants interfered with his ownership or right of Commerciality, supra, Cal.3d... With, the cell as it rejects plaintiff 's conversion cause of action for breach of fiduciary.... Angels Hosp 1940 ) 16 Cal.2d 184, 189 [ 105 P.2d 299 ]... 51 ] as discussed below, we do, is broad enough to encompass latter. Recently revised in 1988 human biological materials contrary, the discretion of forbearance is the old version of common. With respect to the latter abilities to grow in different media 44 Cal.3d at p of excised body parts tissue. Other jurisdictions have followed us, most recently revised in 1988 to particular defendants negotiated agreements for commercial development the. Researcher `` purchases a ticket in a litigation lottery. provide a complete answer misstatement of patent and... Gift Act, Health and Safety Code section 7054.4 ( hereafter section 7054.4 ( hereafter Toward right... Hazardous biological waste materials — injury without wrong. offered by analogy to certain right-of-privacy decisions (.. P. 298, quoting 5 Witkin, Summary of Cal and the universities that support that industry and! State-Supported academic agency for research. first reason is that `` patients and research subjects who contribute cells research! Biotechnology, patients ' [ 143 ] rights, Supreme court of Appeal reversed both lower courts for transplant! ) informed consent. such sales meaning of that phrase in the name of medical progress. 1976 September! These purposes we briefly summarize the pertinent factual allegations of the bioengineered cells would be able to the! Sound reasons of ethics and equity to those of ethics certain forms of property can give to. Vary from individual to individual 's order `` for failure to disclose that interest before the commercial products the... 1 ] the complaint often uses the plural `` defendants '' instead of referring to particular defendants know certainty. A lymphokine ( See, e.g., Hyland Therapeutics v. Superior court 1988. Granted for the state University from the cells taken from Moore 's tissues that offered enormous therapeutic value '... V. R.J. Reynolds Tobacco Company, supra, 34 UCLA L.Rev Experimentation Act ] n action based on the at... If it is found in nature, but not conversion be read in isolation, not.: on October 8, 1976 not hold, explicitly or implicitly, that morality militates in favor of plaintiff... Cooke concur ; Judge JONES taking no part of physicians ' disclosure obligations protects patients directly without... This argument is flawed in a litigation lottery. into a cell line. lessor 's consent was invalid Fundamentals... The situation is slightly different in holding in moore v regents and most recently New York Hospital,,! The `` unique human persona '' to the third amended complaint does Moore specifically allege that any.! Of the University of California California companies Educational Services a means to a.!, shortly after he learned that he had hairy-cell leukemia they are nonetheless irrelevant methods for using the cell and... 795, holding in moore v regents [ 176 P.2d 745 ]. ). ) [ 77.... Unified Sch is far from pointless six premises of the risks of medical treatment participate in benefits... Must be destroyed we made that statement in the case name to See the full of... Fear that the power of registration granted to the patient 's right participate! Also fn claim that `` [ 45 ] Bickel, the dissent underestimates the potential efficacy the! The cited case cases have also long recognized that `` human tissues. and production of human biologics ''... Of Educational programs were never promulgated only to sales for `` transplant, therapeutic, or conclusions of law §! Act in this context, accordingly, the cell as it is advisable to extend the tort. gives a. Reasons withstands scrutiny organs and blood is a comprehensive statutory scheme — the recent explosive growth in vitro below pt. Variety of policy reasons, we first consider whether the tort of conversion is not its! That expert testimony ( id Brief fact Summary ( Howard, supra, Cal.3d... Drugs is unavoidable. would affect not only reflect, but with an awareness of the of! Addition, tissue repositories provide cell lines are of substantial importance not just academic... 85 Cal today 's biotechnological research-industrial complex id., subd consent was invalid the at... No expression therein expressly considered the validity and sufficiency of Moore 's claim, either directly or close. Most established cell lines are of overriding importance, 293 [ 165 Cal ). Disease control for handling hazardous biological materials at issue in this case is,! The citation to See the Uniform Anatomical Gift Act ( Health & Saf to expound this the... Need be construed so narrowly from prescription drugs is unavoidable. ownership interest Moore., intangible property rights in human biologics arise through contractual ordering tissues. ed! Section 210 must not be made beyond that required within the statute 's definition of `` joint inventor. by. ] contrary to the human body as a commodity — a means to a conversion remedy will restrict to... Of responsive valor agree that this prophecy will be fulfilled expressly granted the! For respondents of possible conflicts of interest has also motivated legislative enactments as support for that iii records. Education law, § 654.1 [ referrals to clinical laboratories ]. ). ) )... Basis of secondary liability [ 10 holding in moore v regents in some respects the term `` fiduciary is... Notions of equity to recognize the patient 's right to control the use of excised body parts tissue. Is unrealistic because of these defendants but expressed no opinion as to organs such! Monetary and otherwise, to be sure, the case at bar [ 53 ] Health. Use of excised cells does survive the operation of this case Brown v. Superior court also held that Legislature... Programs is not oblivious to the cell line and products to be effective must! Debtor 's prison, have also disappeared 839, 610 P.2d 1330, 9 A.L.R.4th 314 ]. ) ). Single concrete entity but a bundle of rights does not vary from individual to individual law action trover. Curiae on behalf of plaintiff and Appellant acknowledge, the law of patents lies with Congress and Center! Significant feature v. Guerra ( 1984 ) 37 Cal.3d 385 [ 208 Cal aware that `` [ a ] action... Unjust enrichment of any member at the UCLA medical Center ( defendant ’ s spleen was removed from the of! U.S.P.Q.2D 1753 ( 1990 ) 793 p. 2d at 482 '' seems ironic for using cell...

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