Citation. 229 F.3d 831, 84 FEP Cases 129 (9th Cir. 2000)
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A leukemia patient agreed to have his spleen removed during the course of his treatment. The Medical Center used his spleen for research, which turned out to be very profitable. The patient claimed a property interest in his spleen.
Synopsis of Rule of Law.
A person does not retain a property interest in his bodily tissue once it is removed from his body.
Facts.
John Moore was a leukemia patient at UCLA Medical Center. The Center removed Moore’s spleen during the course of treatment with his consent. Using the spleen, the Center created a cell line, which had a high medical and commercial value. Moore claimed that the Center had converted his property because the Center did not tell him his spleen would be used for commercial purposes and be worth a large amount of money.
Issue.
When a person consents to having his bodily tissue removes as a part of medical treatment, does the patient have a property interest in the removed tissue that will allow him to control how the tissue will be used for medical and commercial purposes?
Held.
No.
Once tissues are removed from a body, a person loses his ownership interest in them. Removed body parts do not belong to the person from who they taken.
If the concept of conversion was extended to tissues removed during surgery, socially useful activities like research would be halted because scientists would not know if their use of tissues is against the donor’s wishes.
The patient, however, can have a claim for breach of fiduciary duty or lack of informed consent against the doctor who removed his spleen. The patient would have to show that the doctor did not tell him that his tissue had potential commercial value, and that the doctor intended to profit from the tissue. This claim, however, is valid only against the doctor, not the Medical Center.
Dissent.
(Broussard, J) If, before the tissue was removed, the Medical Center intentionally withheld information that they were obligated to disclose to the patient for him to make a decision over his body part, and if the Medical Center did so in order to receive an economic benefit, then a cause of action of action for conversion exists. This means that the Medical Center misappropriated the patient’s right of control over his tissue for their own advantage, and they should not be allowed to profit from their actions.
The economic incentive to scientists to perform research will not be lost by allowing a conversion action to be pursued because the value of the research comes from the work of the researchers, not the tissue from the patient. Thus, a patient’s damages will be limited, so the researchers will still retain a large economic benefit from their work.
(Mosk, J) The patient, at the very least, had the right to do with his own tissue what the Medical Center did with it. He could have made a deal with researchers and companies to create a highly valuable product. Since his tissue was used to make a product, he made a crucial contribution to the invention, so he should be entitled to a share of any proceeds that derive from his body part.
Concurrence. The legislature is the proper authority to decide whether human tissue should be treated as a commodity
Discussion.
When a person’s tissues are extracted with consent, and then used for scientific and commercial purposes, the patient does not retain any ownership of the tissues and so cannot direct how they are then used.
