Case Comment: Moore v.

Regents of University of California

Author(s): Eric R. Gotwalt
Source: Food and Drug Law Journal , 1992, Vol. 47, No. 2 (1992), pp. 225-245
Published by: Food and Drug Law Institute (FDLI)

Stable URL: https://www.jstor.org/stable/26659114

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 Case Comment: Moore v. Regents of University of California

Eric R. Gotwalt*

I. Introduction1

After learning that he had hairy cell leukemia, a rare, potentially f

blood disorder, John Moore visited the University of California
Angeles Medical Center (UCLA) to confirm the diagnosis and rec
treatment.2 The UCLA physician who treated Mr. Moore was Dr.
W. Golde. After taking samples of blood, bone marrow aspirate, and
bodily substances, Dr. Golde confirmed that Mr. Moore suffered
hairy cell leukemia,3 and, on October 8, 1976, recommended a sp
tomy4 to slow the progress of the disease.6 Unknown to Mr. Moore,
Golde and his colleagues had learned through the tests they had
formed during his initial visit that his blood had certain unusual qua
which were potentially very valuable, both scientifically and com
cially.8 Prior to performing the splenectomy, Dr. Golde and Shirl
Quan, a researcher employed by the Regents of the University of Cal
nia, made arrangements to take tissue samples following Mr. M
spleen following its removal, and to transport the samples to a U
research unit.7
Dr. Golde made no mention of his research plans nor requested
Moore's permission to carry out his plans.8 On October 20, 1976
Golde removed Mr. Moore's spleen and obtained the tissue samp
sought.9 The splenectomy was successful in treating Mr. Moore's
disorder;10 at Dr. Golde's direction, however, Mr. Moore returned to

* Mr. Gotwalt is a federal judicial law clerk in the Southern District of Georgia. This pap
awarded Second Place in the 1991 H. Thomas Austern Writing Awards Competition spons
The Food and Drug Law Institute.
1. Because this case reached the California Supreme Court on demurrers, the facts presen
this article are as they were alleged in Mr. Moore's complaint, which the court took as true
purposes of their review. Moore v. Regents of Univ. of Cal., 793 P.2d 479, 480 (Cal. 1990
2. Id. at 481.
3. Id.
4. I.e., removal of the spleen. In Mr. Moore's case, the splenectomy was advisable as his sple
was enlarged from the disease. See id. at 486.
5. Id. at 481.
6. Specifically, they had noticed that Mr. Moore's T-lymphocytes produced unusually large
quantities of certain lymphokines. As there are many different types of lymphokines, normally pro
duced in small quantities, it is difficult to detect and isolate the gene responsible for any particular one
type of the different types. Because Mr. Moore's T-lymphocytes were overproducing some of these, it
was much easier for researchers to identify the gene responsible for those particular lymphokines. See
id. at 481-82 n.2.
7. Id. at 481.
8. Id.
9. Id.
10. Id. at 486 n.ll.

225

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226 FOOD AND DRUG LAW JOURNAL Vol. 47

UCLA Medical Center from his home in Seattle several times between
November 1976 and September 1983 in order to have blood, blood serum,
skin, bone marrow aspirate, and sperm samples taken.11 Dr. Golde alleg
edly represented to Mr. Moore that these tests were a necessary part of
his treatment, and that the tests could only be performed under his direc
tion at the UCLA Medical Center.12 In fact, Dr. Golde's primary objec
tives in scheduling these follow-up visits were to further his research in
terests and maintain UCLA's exclusive access to Mr. Moore's cells.13
As early as August 1979, Dr. Golde had established a cell line14 (subse
quently named the Mo cell line) from Mr. Moore's T-lymphocytes.15 On
January 30, 1981, Dr. Golde and Ms. Quan, through the University of
California Board of Regents, applied for a patent on the cell line.16 The
patent17 issued on March 20, 1984, naming Dr. Golde and Ms. Quan as
inventors and the Regents as assignees, and included both the cell line and
various methods for using it to produce several different lymphokines.18 In
1981, three years before this patent issued, Dr. Golde, with the active
participation of the Regents, entered into a financially lucrative agreement
with Genetics Institute, Inc., whereby Genetics Institute would gain ex
clusive access to the Mo cell line and any products derived from it.19 On
June 4, 1982, Dr. Golde and the Regents reached a similar agreement
with another company, Sandoz Pharmaceuticals.20
In his complaint, Mr. Moore alleged that throughout seven years of
post-splenectomy visits to the UCLA Medical Center, Dr. Golde never
informed him of the research being performed on his tissue.21 Nor did Dr.
Golde present him with a consent form requesting permission to perform
research on his blood and other tissue until April 11, 19 8 3.22 During the
April 11th visit, Dr. Golde presented Mr. Moore with a consent form,
requesting his consent to perform research on his blood and other tissue.23
This was the first written consent Mr. Moore had given since he had

11. Id. at 481.

12. Id.
13. Id.
14. A cell line is a cell which has been cultured in a solution of chemicals in order to maintain it
indefinitely through continuous reproduction. Id. at 481-82 n.2.
15. Id. at 481.
16. Id. at 481-82.
17. Moore v. Regents of Univ. of Cal., 249 Cal. Rptr. 494, 516 (Cal. Ct. App. 1988) (appendix
A (U.S. Patent No. 4,438,032)).
18. Id.
19. Under the terms of the Genetics Institute agreement Dr. Golde and the Regents were to
receive $330,000 over three years, including a pro-rata share of Dr. Golde's salary and benefits. Dr.
Golde also received 75,000 shares of common stock valued at a penny a share and became a paid
consultant to Genetics Institute. Moore v. Regents of Univ. of Cal., 793 P.2d at 482.
20. Id. The agreement with Sandoz Pharmaceuticals called for an additional SI 10,000 under
terms similar to those of the Genetics Institute agreement. Id.
21. Moore v. Regents of Univ. of Cal., 249 Cal. Rptr. at 501.
22. Id.
23. Id.

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1992 MOORE V. REGENTS 227

consented to the splenectomy.24 Later in 1983, Mr. Moore again signed a

consent form authorizing research on his blood specimens;26 on this occa
sion, however, he explicitly reserved any rights "in any cell line or any
other potential product which might be developed from the blood and/or
bone marrow obtained from me"28 by checking an appropriate box on the
form. Dr. Golde allegedly evaded Mr. Moore's subsequent inquiries re
garding the value of his cells, and attempted to discourage him from seek
ing any further information.27 When asked to sign a similar consent form
during his next visit to the UCLA Medical Center, Mr. Moore refused.28
On September 11, 1984, Mr. Moore filed suit in a Los Angeles supe
rior court against Dr. Golde, Shirley Quan, the Regents of the University
of California, Genetics Institute, and Sandoz Pharmaceuticals, alleging
thirteen causes of action.29 Mr. Moore sought to gain a share of the prof
its to the cell line, which was estimated to have a market value of over S3
billion by 1990.30 In the trial court, the defendants filed demurrers to each
cause of action included in the complaint.31 The superior court specifically
sustained the demurrer to the conversion cause of action, ruling that Mr.
Moore had failed to state a claim.32 The court also sustained a general
demurrer to the complaint, finding that the other claims were interdepen
dent with the failed conversion claim.33

The California Court of Appeal reversed the superior court in part,

holding that Mr. Moore had stated a cause of action for conversion
against Dr. Golde, Ms. Quan, and the Regents of the University of Cali
fornia.34 The court agreed with the superior court that the allegations
against the other named defendants, Genetics Institute and Sandoz
Pharmaceuticals, were insufficient and affirmed the lower court ruling
sustaining the remaining demurrers.36 The appellate court held, however,
that it was error to not grant leave to amend the remaining causes of
action, and directed the superior court to grant Mr. Moore leave to amend

24. Mr. Moore apparently signed a consent form authorizing the splenectomy, but this form was
not produced for the court. Id. at 501, 502.
25. Id. at 531 (exhibit A). This exhibit is a copy of the consent form that Mr. Moore signed.
26. Id. at 501.

27. Moore v. Regents of Univ. of Cal., 793 P.2d at 485-86.

28. Moore v. Regents of Univ. of Cal., 249 Cal. Rptr. at 501.
29. Specifically, the causes of action were (1) conversion, (2) lack of informed consent, (3) br
of fiduciary duty, (4) fraud and deceit, (5) unjust enrichment, (6) quasi-contract, (7) breach of imp
covenant of good faith and fair dealing, (8) intentional infliction of emotional distress, (9) negl
misrepresentation, (10) interference with prospective advantageous economic relationships, (11
der of title, (12) accounting, and (13) declaratory relief. Moore v. Regents of Univ. of Cal., 793
at 482 & n.4.
30. Id. at 482.
31. Id.
32. Id.
33. Id.
34. Moore v. Regents of Univ. of Cal., 249 Cal. Rptr. 494 (1988).
35. Id.

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228 FOOD AND DRUG LAW JOURNAL Vol. 47

his complaint and to rule on the remaining twelve causes of action.36 The
case was then appealed to the California Supreme Court.37

II. The California Supreme Court's Analysis

Two issues were decided by the California Supreme Court:

1. Under the facts as alleged in Mr. Moore's complaint, Dr. Gol

a duty under California's informed consent doctrine to advise hi
his research plans and the potential profits which his research w
yield.38
2. For the purposes of a conversion action, Mr. Moore had no property
rights in his spleen, blood, blood serum, skin, bone marrow, or sperm
either before or after their removal from his body.39

The case was then remanded to the court of appeal with instructions to
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 Genet
ics 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.40

In allowing a cause of action under the doctrine of informed consent,

the California Supreme Court expanded a patient's right to disclosure to
include the right to know of any conflicting or ulterior interests his or her
physician might have in proposing a particular treatment plan.41 The ma
jority expressed concern that, when a physician intends to use a patient
for research purposes, particularly where the research plans are formu
lated in advance of recommending and carrying out a plan of treatment,
that physician may, knowingly or unknowingly, compromise a patient's
best interests.42 Such a conflict between a doctor's research interest and a
patient's health interest, according to the majority, is material to a pa
tient's decision to undergo treatment and must necessarily be conveyed to

36. Moore v. Regents of Univ. of Cal., 793 P.2d at 482.

37. Review was granted in Moore v. Regents of University of California, 763 P.2d 479 (Cal.
1989).
38. Moore v. Regents of Univ. of Cal., 793 P.2d at 497.
39. Id.
40. Id.
41. Id. at 483.
42. Id. at 484.

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1992 MOORE V. REGENTS 229

the patient in order to satisfy the requirements of the informed consent

doctrine in California.43
The majority found support for their position in several California leg
islative enactments. The first, section 654.1 of the California Business and
Professions Code, requires doctors to disclose any interest in a medical
clinic or laboratory to which they refer a patient, presumably because of
the conflict of interests which could result.'44 The second, sections 24,172 -
24,173 of the California Health and Safety Code, requires that doctors
who are performing medical experiments on human subjects disclose to
their subjects the name of the organization behind the research, the risks
and discomforts associated with the experiment, and the purpose of the
experiment.46 These statutes, according to the court, indicate that conflicts
of interests, such as those which could arise between a doctor's research
activity and his or her patient's health, are material to the patient's deci
sion to undergo treatment under that doctor.40 As a material element of
the patient's decisionmaking process, such a conflict must be disclosed.47
Although the majority were willing to recognize that Mr. Moore could
maintain an action under the informed consent theory, they were unwill
ing to recognize that his complaint stated a cause of action in conversion
or to extend the doctrine of conversion to accommodate the suit.48 They
reversed the court of appeal's decision on the following grounds.
First, the majority pointed out that no court had ever imposed conver
sion liability for the use of human cells in medical research.49 This, the
court stated, was not merely because no court had ever ruled on this issue.
According to the majority, cell line technology has been in existence since
1951 when the first human tumor cell line was isolated.80 The majority
held that allowing the conversion action would be an extension of that
doctrine far beyond "a tort theory originally used to determine whether
the loser or the finder of a horse had the better title."51 The court further
held that under existing tort theory, only property can be converted. No
court had ever allowed a conversion action because no court had recog
nized property rights in excised tissue.52
Not only was there no case law recognizing property rights in removed
tissue, reasoned the court, California legislative enactments create, at the
least, a strong presumption that one does not retain any property rights in

43. "The scope of the physician's communication to the patient . . . must be measured by the
patient's need, and that need is whatever information is material to the decision." Id. at 483 (quoting
Cobbs v. Grant, 502 P.2d 1, 3 (Cal. 1972)).
44. Id. at 484 (citing Cal. Bus. & Prof. Code § 654.2 (West 1990)).
45. Cal. Health & Safety Code § 24,173 (West 1990).
46. Moore v. Regents of Univ. of Cal., 793 P.2d at 483-84.
47. Id. at 484.
48. Id. at 487-97.
49. Id. at 487.
50. Id. at 487 & n.15.
51. Id. at 487-88.
52. Id. at 489.

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230 FOOD AND DRUG LAW JOURNAL Vol. 47

excised tissue.53 Of particular significance to the court was a statute gov

erning the disposal of excised tissue which severely limits the rights one
can exercise over removed tissue.54 The majority concluded that whatever
rights in removed tissue were left intact by the legislature were insuffi
cient to warrant calling them property.58 The majority then declared that
conversion was inappropriate in the context of human tissue, because the
statutory law governing human tissue, transplantable organs, blood, fe
tuses, pituitary glands, corneal tissue, and dead bodies treats such materi
als as a species unto their own, rather than leaving them to the common
law doctrine of conversion.56
After concluding that existing conversion law was inapplicable to Mr.
Moore's complaint, the court considered policy arguments for and against
extending the doctrine.57 The majority cited two primary factors weighing
against extension of the conversion doctrine to Mr. Moore's claim. The
majority's first consideration was the need to balance protection of the
patient's right to make his or her own medical decisions against protection
of researchers from the threat of disabling civil liability.58 Because the
majority believed that allowing Mr. Moore to proceed under the doctrine
of informed consent would provide a satisfactory balancing of the two
goals, they argued that it was unnecessary to allow a conversion action.59
The majority expressed their view that "enforcement of physicians' dis
closure obligations will protect patients against the very type of harm with
which Moore was threatened. So long as a physician discloses research
and economic interests that may affect his judgment, the patient is pro
tected from conflicts of interest."60 Thus, the court felt no need to recog
nize the conversion action. The second argument presented by the major
ity was that the legislature was more appropriately equipped to determine
the parties rights and obligations in circumstances such as those presented
by the Moore case.61 In reaching this conclusion, the court pointed out
that the legislature had shown competence to balance competing policy
considerations through previous enactments governing the use and disposi
tion of human biological materials.62

53. Id.
54. Id. See Cal. Health & Safety Code § 7054.4 (West 1990 Supp.) (providing that "recog
nizable human parts, human tissues, anatomical human remains, or infectious waste following conclu
sion of scientific use shall be disposed of by interment, incineration, or any other method determined
by the state department to protect the public health and safety").
55. Moore v. Regents of Univ. of Cal., 793 P.2d at 492.
56. Id. at 489 & nn.21-27.
57. Id. at 493-97.
58. Id. at 493.
59. Id. at 494.
60. Id. at 497.
61. "Legislatures, 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." Id. at at 496 (quoting Foley v. Interactive Data Corp., 765 P.2d 373, 397 n.31
(Cal. 1988)).
62. Id.

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1992 MOORE V. REGENTS 231

The majority opinion was authored by Justice Panelli, and was joined
by Justices Eagleson and Kennard, and Chief Justice Lucas.63 Justice
Arabian concurred in a separate opinion addressing the moral, social,
philosophical, and religious issues presented by this case.84 Justice Brous
sard concurred with the majority in their ruling on the informed consent
cause of action, but dissented from the decision to sustain the defendant's
demurrer to the conversion cause of action.88 Justice Mosk concurred with
the majority's holding to the extent that they recognized a cause of action
under the doctrine of informed consent. He disagreed, however, with the
majority's position that the informed consent ruling would provide Mr.
Moore with an adequate remedy; thus, Justice Mosk dissented from the
majority's holding on the issue of conversion.88

III. The Law

A. California's Informed Consent Doctrine

The doctrine of informed consent law in California can be traced to the

opinion authored by Judge Cardozo in the New York case of Schloendorff

v. Society of New York Hospital.67 In his opinion, Judge Cardozo ex
pressed the broad sentiment that "[e]very human being of adult years and
sound mind has a right to determine what shall be done with his own
body."88 This sentiment is the foundation for the doctrine. The doctrine's
purpose is to ensure that physicians disclose to their patients the health
risks of a recommended treatment, so that patients could have the infor
mation necessary to determine whether or not to undergo a given proce
dure.89 Failure to disclose the risks of treatment may lead to civil liability
if an undisclosed risk occurs and the patient can show that had that par
ticular risk been disclosed, he or she would not have consented to the pro
cedure.70 Generally, liability is grounded in negligence although, on occa
sion, a battery action may be appropriate.71

63. Id. at 497.

64. Id. at 497-98 (Arabian, J., concurring).
65. Id. at 499 (Broussard, J., concurring and dissenting).
66. Id. at 519 (Mosk, J., dissenting).
67. 105 N.E. 92 (N.Y. 1914).
68. Id. at 93.
69. Id. See also Truman v. Thomas, 611 P.2d 902 (Cal. 1980) (holding that a physician had a
duty to disclose the risks of refusing recommended treatment, where decedent refused to undergo pap
smear test); Morgenroth v. Pacific Med. Center, Inc., 126 Cal. Rptr. 681 (Cal. Ct. App. 1976) (hold
ing that a physician has a duty to disclose to patient the potential of death or serious harm where a
procedure inherently involves a known risk); Cobbs v. Grant, 502 P.2d 1, 10 (Cal. 1972) (holding
that "there is a duty of reasonable disclosure of the available choices with respect to proposed therapy
and of the dangers inherently and potentially involved in each"). See generally W. Prosser, Law of
Torts § 32 (4th ed. 1971) (stating that "[t]rue 'informed consent' cases concern the duty of the
physician to inform his patient of risks inherent in the surgery or treatment to which he has
consented").
70. Cobbs v. Grant, 502 P.2d at 8.
71. For this distinction, see Mink v. University of Chicago, 460 F. Supp. 713, 716-17 (N.D. 111.
1978), which states: "The question thus becomes whether the instant case is more akin to the per

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232 FOOD AND DRUG LAW JOURNAL Vol. 47

California has accepted the Schloendorff decision both judicially and

legislatively. Cobbs v. Grant72 provides a thorough judicial treatment of
the law of informed consent in California. In Cobbs, plaintiff brought suit
against a doctor who allegedly failed to disclose to him the risks associated
with an operation to treat a duodenal ulcer.73 The doctrine of informed
consent as stated by the Cobbs court may be summarized as follows: (1)
physicians and surgeons have a duty of reasonable disclosure to their pa
tients of the available treatments and the dangers of each alternative,74 as
well as a duty to disclose "such additional information as a skilled practi
tioner of good standing would provide under similar circumstances";78 (2)
the test for determining whether a potential peril must be divulged is its
materiality to the patient's decision;76 (3) to establish the necessary causal
connection between the physician's negligence in failing to adequately in
form the patient of the risks associated with the treatment and the pa
tient's injury, the patient must show that a reasonably prudent person in
the patient's position would have refused the treatment but for the physi
cian's inadequate disclosure;77 and (4) a patient's cause of action should
be grounded in negligence, except where a doctor performs a substantially
different treatment from that to which the patient consented or otherwise
fails to obtain the patient's consent, in which case a battery action may be
appropriate.78
Other cases have echoed the broad position taken in Cobbs that "[a]ll
information material to the patient's decision should be given,"79 defining
material information as any information which the physician knows or
should know would be regarded as significant by a reasonable person in
the patient's position.80 The Cobbs case as well as other informed consent
cases, however, involved situations in which the undisclosed occurring risk
was a health risk directly associated with the treatment proposed by the
physician.81 Mr. Moore's complaint did not allege that Dr. Golde failed
to inform him of the health risks associated with the splenectomy, nor that
Dr. Golde failed to inform him of the health risks associated with the
various follow-up procedures performed at the UCLA medical center.

formance of an unauthorized operation than to the failure to disclose the potential ramifications of an
agreed to treatment." The court ruled that the plaintiffs, who had unknowingly been involved in an
experiment to test the effectiveness of the pregnancy drug DES, could maintain an action for battery.
See also Cobbs v. Grant, 502 P.2d 1 (Cal. 1972).
72. Id. at 1.
73. Id. at 4.
74. Id. at 10.
75. Id. at 12.
76. Id.
77. Id.
78. Id. at 8.
79. See Truman v. Thomas, 611 P. 2d at 905. The Truman court held that a jury could
that a physician had a duty to inform his patient of the danger of refusing the pap smear
mended by the physician under California's informed consent doctrine. Id. at 907.
80. Id.
81. See supra note 69 and accompanying text.

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1992 MOORE V. REGENTS 233

Thus, the seemingly broad disclosure requirements of Cobbs are not nec
essarily applicable to the Moore case.
The most persuasive case law supporting the conclusion that there is a
duty to disclose interests not directly related to the patient's health comes
from Magan Medical Clinic v. California State Board of Medical Exam
iners,82 which upheld a statute83 specifically preventing physicians from
maintaining any interest in pharmacies.84 Presumably, the legislature en
acted the statute in order to eliminate the temptation for physicians to
prescribe unnecessary medication.85 The Magan court held that the legis
lature's concern was a constitutionally valid basis for enacting the stat
ute.86 In dicta, Judge Fourt wrote that "a sick patient deserves to be free
of any reasonable suspicion that his doctor's judgment is influenced by a
profit motive."87 The Moore majority cited Magan for the proposition
that a physician's conflicting interests are material to the patient's decision
and, thus, are subject to the disclosure requirements of the informed con
sent doctrine.88 The point must be made, however, that the Magan deci
sion merely upheld a statute preventing the occurrence of one kind of con
flict of interests. It did not create a common law duty to disclose such a
financial conflict. Currently, California does not have a statute which pre
vents a physician from performing research on tissue removed from a pa
tient during surgery.
The strongest statutory authority for the proposition that doctors have a
duty to disclose personal interests which are unrelated to the patient's
health comes from sections 24,171-24,176 of the California Health and
Safety Code, which specifically define the scope of disclosure required of
physicians who conduct medical experiments on human subjects.89 These
statutes require that a researcher inform his or her subject of the nature
and purpose of the experiment, offer the subject a chance to ask questions
regarding the experiment, and inform the subject that consent may be
withdrawn at any time. To the extent that Mr. Moore was involved in a
series of research procedures allegedly unrelated to his health, he may be

82. 57 Cal. Rptr. 256 (Cal. Ct. App. 1967).

83. Cal. Health & Safety Code § 654 (West 1963) (amended 1979).
84. Id.

85. Magan Med. Clinic v. California State Bd. of Med. Examiners, 57 Cal. Rptr. at 259.
86. Id.
87. Id. at 262.
88. Moore v. Regents of Univ. of Cal., 793 P.2d at 483.
89. Cal. Health & Safety Code §§ 24,170-74,176 (West 1984) (requiring that researchers
conducting medical experiments on human subjects inform subjects of the nature and purpose of the
experiment, and the name of the person sponsoring that experiment, as well as any discomforts and
risks associated with the experiment that the subject could reasonably expect to experience). Subjects
must be given an opportunity to ask any questions concerning the experiment or the procedures in
volved, and be instructed that consent to the experiment may be withdrawn at any time. The statute
specifically states that the subject must consent to participate in the experiment without the interven
tion of any element of force, fraud, deceit, duress, coercion, or undue influence. Negligent violators of
the statute may be held liable to the subject for up to $1000. Willful violators may be held liable to
the subject for up to $5000, fined up to $10,000, and imprisoned for up to one year. Id.

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234 FOOD AND DRUG LAW JOURNAL Vol. 47

able to amend his complaint to fall within the statute; the California Su
preme Court, however, declined to address whether or not the statute was
applicable to the facts of Moore because the trial court had not yet reached
that particular issue.90
In addition to the legislation governing informed consent in the context
of medical experiments, several other statutes have been passed exemplify
ing the legislature's recognition of, and interest in, a physician's duty of
disclosure to his or her patients. One such statute prohibits physicians
from referring patients to any clinical laboratory in which that physician
maintains a financial interest, unless that interest is disclosed to the pa
tient in writing.91 The Moore majority interpreted the existence of this
statute as supportive of the proposition that the information allegedly con
cealed by Dr. Golde, regarding the potential value of his cells, was mate
rial to Mr. Moore's decision to undergo surgery at UCLA as a similar
conflict of interest could have arisen between Dr. Golde's research interest
and his duty to Mr. Moore as a patient. This statute, however, provides
for criminal, not civil, liability, and only indirectly supports the court's
decision.

Finally, there are several other California statutes, which the court did
not cite, governing the scope of disclosure required of physicians and sur
geons under specific circumstances. One involves the prescription of dan
gerous drugs.92 Another involves breast cancer treatment.93 Both of these
statutes, however, are similar to the judicially formed doctrine of informed
consent in that the information which they require physicians to divulge
relates directly to the patient's health. Neither requires disclosure of infor
mation indirectly related to the patient's health, such as future research
plans involving removed tissue, and do not directly support the court's
ruling.
The California Supreme Court, through Moore, has expanded the in
formed consent doctrine to specifically require physicians to disclose per
sonal interests unrelated to a patient's health, such as future research
plans on tissue which is to be removed, if those personal interests could
affect the physician's judgment.94

90. Moore v. Regents of Univ. of Cal., 793 P.2d at 484 & n.7.
91. Cal. Bus. & Prof. Code § 654.1. The statute provides for punishment of up to one year
imprisonment, by a fine not to exceed S 10,000, or both.
92. Cal. Health & Safety Code § 4211.5 (requiring a physician to disclose the risks, dis
comforts, benefits, and treatment procedures associated with the drug dimethyl sulfoxide (DMSO) as
well as any alternative procedures and their relative risks and benefits, prior to treating the patient
with that drug).
93. Id. § 1704.5 (requiring physicians and surgeons to inform breast cancer patients in writing
of "the advantages, disadvantages, risks and descriptions of the procedures with regard to medically
viable and efficacious alternative methods of treatment." Failure to do so constitutes unprofessional
conduct.).
94. Moore v. Regents of Univ. of Cal., 793 P.2d at 485 & n.10.

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1992 MOORE V. REGENTS 235

B. Conversion Liability

The doctrine of conversion initially developed as a form

allow the recovery of lost property.98 In order to establish a
tion for conversion, a plaintiff must show interference with
interest in the property which is the subject of the action.96 P
been defined in California to include "every species of esta
personal, and everything which one person can own and tr
other."97 Property has also been described as "a bundle of righ
to an object, including the right to possession, the right to use
exclude others, and the right to dispose of the property b
gift."98 Limitations or restrictions on some or many of the righ
associated with property, however, do not establish conclusive
object in question is not property.99
There is no case law addressing the issue of whether or not
can be considered property for the purpose of bringing a c
tion. Analogies have been made to possessory interests in dead
control of the disposal of removed body parts and fetuses,101
the the disposal of one's excrement,102 control over organ donat
control over rights to privacy and publicity.104 In addition, th
has classified the manufacture, sale, and donation of blood
rivatives as the rendition of services rather than the supply of
On the other hand, while some jurisdictions have passed legi
gesting a limitation of the rights in body parts which are usu
ated with property, such limitations do not necessarily mean

95. Id. at 487-88 & n.17.

96. Id.
97. Id. at 509 (Mosk, I., dissenting) (quoting Yuba River Power Co. v. Nevada Irrigation
279 P. 128,129 (Cal. 1929)).
98. Id. at 510, (Mosk, J., dissenting) (citing Union Oil Co. v. State Bd. of Equality, 38
854 (1963)).
99. Id. (Mosk, J., dissenting) (citing People v. Walker, 33 Cal. App. 2d 18, 20 (1939), for the
proposition that the possessor of contraband has certain property rights in that contraband against
everyone other than the state). See also Note, Source Compensation for Tissues and Cells Used in
Biotechnical Research: Why a Source Shouldn't Share in the Profits, 64 Notre Dame L. Rev. 628,
629-30 & n.ll (1989).
100. Cal. Health & Safety Code § 7054.4 (providing that "recognizable anatomical parts,
human tissues, anatomical human remains, or infectious waste following conclusion of scientific use
shall be disposed of by interment, incineration, or any other method determined by the state depart
ment to protect the public health and safety").
101. Id.
102. In Venner v. State, 354 A. 2d 483, 498 (Md. Ct. Spec. App. 1976), the court stated that "[i]t
is not unknown for a person to assert a continuing right of ownership, dominion, or control, for good
reason or for no good reason, over such things as excrement, fluid waste, secretions, hair, fingernails,
toenails, blood, and organs or other parts of the body." The California Supreme Court declined to
follow this position on the grounds that as a criminal procedure dispute over evidence suppression, far
different considerations were at issue than in the Moore case, which the court characterized as a civil
dispute over who was entitled to the economic benefit of property.
103. Uniform Anatomical Gift Act, Cal. Health & Safety Code §§ 7150 et seq. (West 1990
Supp.)
104. Moore v. Regents of Univ. of Cal., 793 P.2d at 489-90.
105. Cal. Health & Safety Code § 1606.

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236 FOOD AND DRUG LAW JOURNAL Vol. 47

maining rights are not property rights. In the context of dead bodies,
California is one of several jurisdictions to recognize quasi-property rights
for the purpose of burial.108 In addition, the Uniform Anatomical Gift
Act107 recognizes conditional rights of a deceased (and his or her survi
vors) to donate organs, choose a donee, and choose a surgeon to perform
the removal of the designated organ upon their death.108 The Act includes
pacemakers among the donable "organs."109 Finally, the Act110 allows or
gan donors to make a gift by will111—an instrument normally associated
with the disposal of one's property. There would then seem to be some
property or quasi-property rights associated with one's organs, at least for
donative transactions. It is somewhat enlightening that a pacemaker is
considered a donable organ under the statute112—one could conceptualize
the recognition of a conversion action in the context of an unauthorized
use of a donated pacemaker. Although classified by the statute as a don
able organ, a pacemaker could also be characterized as a saleable, tangible
mechanical device—a manufactured good. Certainly this is true when the
pacemaker is in new condition; once used, what distinguishes the pace
maker from any other device, for example, a vacuum cleaner, which can
be reconditioned and resold as used? No court could deny that a conver
sion action could arise over a used vacuum cleaner which had been stolen,
reconditioned, and sold. If a pacemaker is like a vacuum cleaner, why is it
given the same statutory classification as natural human organs? While
the Act does limit one's right to sell one's organs,113 this limitation argua
bly applies only to donations for transplantation, therapy, or recondition
ing, and not to donations for educational or research purposes.114 Clearly,
even presuming that organs cannot be sold for educational and research
purposes, the Act creates certain property-like rights in one's organs, most
noticeably donability, transferability, and designability. These rights are
among the most fundamental of property ownership.

IV. Analysis

The California Supreme Court's decision in the Moore case

factory for three reasons. First, the majority's legal analysis

106. See Cohen v. Groman Mortuary, Inc., 41 Cal. Rptr. 481 (Cal. Ct. App. 1
Rivers v. Greenwood Cemetery, 22 S.E.2d 134 (Ga. 1942) (recognizing quasi-property
body.)
107. Cal. Health & Safety Code §§ 7150-7156.5 (West 1990 Supp.).
108. Id.
109. Id. § 7150.1(a).
110. Id.
111. Id. § 7150.1(c).
112. Id. § 7150.1(a).
113. Id. § 7155(a).
114. Id. For this argument, see Moore v. Regents of University of California, 793 P.2d at 517
(Mosk, J., dissenting). An interesting result of allowing the sale of organs for educational purposes
would be the presence of "due on death" clauses in contracts, because under the Act a gift cannot take
effect until death.

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1992 MOORE V. REGENTS 237

formed consent and conversion is flawed. In addition, from a policy stand

point, extending the doctrine of informed consent to include Mr. Moore's
complaint is inconsistent with the court's refusal to extend conversion.
The inconsistency is evident in two ways: (1) the court presented a
lengthy policy argument against extending the conversion doctrine to in
clude Mr. Moore's complaint, but failed to recognize that much of that
argument applies equally to their extension of informed consent; (2) the
court concluded that the legislature was more appropriately equipped to
recognize an extension of conversion to include Mr. Moore's complaint,
but failed to recognize a clearly established legislative superiority in the
area of informed consent law. Finally, the judicial extension of informed
consent may have been unnecessary, as other remedies may already exist.

A. The Majority's Legal Analyses of Both the Conversion Issue and the
Informed Consent Issue are Susceptible to Doubt Legally

The majority could have allowed Mr. Moore to proceed on both the
informed consent and the conversion causes of action. The court's legal
analysis, while supportable, is questionable and misleading in many
instances.

1. Conversion

There are several reasons to doubt the accuracy of the majority's con
clusion that Mr. Moore could not retain any property rights in his re
moved spleen. Much of the majority's legal analysis focused on section
7054.4 of the California Health and Safety Code which provides that
"recognizable anatomical parts, human tissues, anatomical human re
mains, or infectious waste 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."115 The majority concluded that the statute116 "eliminates so many
of the rights ordinarily attached to property that one cannot simply as
sume that what is left amounts to 'property' or 'ownership' for purposes
of conversion law."117 While it is true that the statute limits one's control
over excised tissue, these limitations do not necessarily mean that the re
maining rights in excised tissue are not property rights. As Justice Mosk
points out in his dissenting opinion, many forms of property are subject to
restrictions; no one, however, would deny that the remaining rights are
property rights.118 Thus, while the majority implies that the statute is

115. Cal. Health & Safety Code § 7054.4 (West 1990 Supp.).
116. Id.
117. Moore v. Regents of Univ. of Cal., 793 P.2d at 492.
118. Justice Mosk cites numerous restrictions on property rights, including: zoning ordina
condominium declarations; historic preservation laws; laws restricting the manufacture, distrib
purchase, sale, and use of products such as tobacco, firearms, foods, drugs, cosmetics, alcoholic

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238 FOOD AND DRUG LAW JOURNAL Vol. 47

conclusive, that implication can be refuted by demonstrating that other

property rights have been legislatively limited without defeating the legal
characterization of those remaining rights as property in nature.
Notwithstanding the statute relied upon by the majority, many jurisdic
tions, including California, have recognized the right to control the dispo
sal of one's deceased as a property or quasi-property right.119 In addition,
the Uniform Anatomical Gift Act120 provides strong support for the pro
position that one may exercise property rights over the disposition of one's
organs. The Act recognizes several rights which are normally associated
with property ownership, including the right to donate an organ through
a will, the right to choose a donee, and the right to choose the surgeon
who will remove the organ.121 As noted, the Act includes pacemakers
among the "organs" which are donable.122 Thus, contrary to the court's
conclusion, there have been substantial property or quasi-property rights
associated with one's organs established by another statute. The limitation
the Act places on one's right to sell organs,123 one of the most severe limi
tations of the Act, arguably applies only to donations for transplantation,
therapy, or reconditioning, and not to donations for educational or re
search purposes.124 Even presuming that organs cannot be sold for educa
tional and research purposes, the Act does recognize certain property-like
rights in one's organs.125
Little of the remainder of the majority's conversion analysis is persua
sive. The majority's reliance on the legislative classification of blood dona
tions and transfusions as a rendition of a service, rather than a sale of a
product, is contextually out of place. This classification is a legal fiction
designed to protect sources of blood products from strict liability and has
nothing to do with the property issue. Even presuming that the statute
was directed at the issue of property rights in blood, the only restriction
arising from legislative enactments is the prohibition, for transfusion pur
poses, of the use of blood from paid donors.126 No California statute pre
vents the sale of blood for purposes other than transfusion.127
The majority's conclusion that the Regent's patent is inconsistent with
Mr. Moore's ownership claim likewise begs the question. Upholding the

ages, flammable or explosive materials, and waste; restrictions on the use of motor vehicles, aircraft,
and vessels; and restrictions on the sale of wild fish and game. Id. at 509-10 (Mosk, J., dissenting).
119. See supra note 106.
120. Cal. Health & Safety Code §§ 7150-7156.5 (West 1990 Supp.).
121. Id.
122. Id. § 7150.1(a).
123. Id. § 7155(a).
124. Id. For this argument, see Moore v. Regents of Univ. of Cal., 793 P.2d at 184 (Mosk, J.,
dissenting).
125. See supra text accompanying notes 107-14.
126. Cal. Health & Safety Code § 1626.
127. See Cramer v. Queen of Angels Hosp., 133 Cal. Rptr. 339, 340 (Cal. Ct. App. 1976) (com
menting that "at least 44 states have adopted statutes for the purpose of eliminating the imposition of
liability without fault upon those who dispense blood products").

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1992 MOORE V. REGENTS 239

patentability of the Mo cell line does not necessarily lead to

that Mr. Moore did not originally own the cells.128 If D
stolen a unique object from Mr. Moore, for example, a rar
stone, and subsequently incorporated that stone in a new lase
would not have been able to protect himself from a conversi
the value of the gemstone merely by acquiring a patent on t
existence of a patent, therefore, is not necessarily inconsiste
Moore's claim to rights in his removed cells.129

2. Informed Consent

While the court's decision to judicially extend the doctrine

consent may be more sound from a legal standpoint than its
conversion action, it too is susceptible to doubt. First, the m
ing is an expansion of the doctrine of informed consent, not
stated, an application of existing law. In addition, the strong
for the majority's position, which comes from Magan Med
California State Board of Medical Examiners,130 is not p
dicta the Magan court commented that "a sick patient deserv
of any reasonable suspicion that his doctor's judgment is infl
profit motive."131 The opinion, however, addressed the validit
prohibiting doctors from maintaining any interest in pharm
nothing to do with informed consent or disclosure. Currentl
nia statute operates to prevent doctors from maintaining a r
est in a patient.
While it is true that informed consent cases have often sta
sicians must disclose any information a patient might consid
the decision to undergo treatment, these cases involved infor
was directly related to the patient's health.132 Informed con
ditionally find liability for failure to disclose the health risk
with proposed medical treatment, or the health risks associat
ing recommended medical treatment. Thus, notwithstandi
ently broad range of information which must be disclosed un
trine, those cases do not necessarily apply to the facts in Mo

B. The Court's Decision to Extend Informed Consent is In

With its Decision Not to Extend Conversion

Presuming that existing law supports the court's extension

consent to include Mr. Moore's complaint, there are compellin

128. See Moore v. Regents of Univ. of Cal., 793 P.2d at 510-12 (Mosk, J., dissen
the majority's conclusion that the patent on Mo cell line is inconsistent with Mr
129. Id.
130. 57 Cal. Rptr. 256 (Cal. Ct. App. 1967).
131. Id. ax 262.
132. See supra note 69 and accompanying text.

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240 FOOD AND DRUG LAW JOURNAL Vol. 47

conclude that the legislature, not the court, is more appropriately

equipped to make that extension. The legislature has already enacted sev
eral statutes to regulate the scope of disclosure required of physicians and
surgeons under particular circumstances.133 The existence of these stat
utes, each addressing a specific situation, shows the legislature's interest in
the doctrine of informed consent as well as its ability to act in the field.
The California Supreme Court recognized areas of legislative superiority
in their ruling on the conversion cause of action: "Legislative competence
to act in this area is demonstrated by the existing statutes governing the
use and disposition of human biological materials."134 It is noteworthy
that disclosure statutes generally provide for limited civil liability, but al
low more liberal criminal fines and penalties.135 Thus, allowing patients
to recover large monetary awards from physicians such as Dr. Golde
through the judicial expansion of the informed consent doctrine may be
contrary to the legislature's wishes, presuming that the legislature would
favor such disclosure.
Further, one can make a compelling argument that the court has tres
passed upon the people's right to political process. Recognizing excised
body tissue as property would be fundamentally inconsistent with prevail
ing social, religious, and philosophical mores. These arguments are elo
quently recognized by Justice Arabian in his concurring opinion:

Plaintiff has asked us to recognize and enforce a right to sell one's

own body tissue for profit. He entreats us to regard the human ves
sel—the single most venerated and protected subject in any civilized
society—as equal with the basest commercial commodity. He urges
us to commingle the sacred with the profane. He asks much.136

While Justice Arabian does not profess to have the answers to the
moral dilemmas which would result from a financial market in body
parts, he has eloquently expressed the reaction of many who would be
deeply troubled by such a development. On the other hand, allowing doc
tors and biotechnology companies to profit without compensating their re
search sources is equally disturbing, and could compromise the medical

133. See supra notes 91-93 and accompanying text.

134. Moore v. Regents of Univ. of Cal., 793 P.2d at 496 (explaining reasons for refusing to
extend the conversion doctrine to Mr. Moore's complaint).
135. A person who negligently fails to obtain the subject's consent to a medical experiment and
who is primarily responsible for that experiment shall be liable to the subject in an amount not to
exceed $1000. If the same person willfully fails to obtain the subject's informed consent, he or she
shall be liable in an amount not to exceed $5000. If such a willful failure exposes a subject to a
known substantial risk of serious bodily or psychological harm, that person shall be guilty of a misde
meanor punishable by up to one year's imprisonment or by a fine of $10,000, or both. Cal. Health
& Safety Code § 24,176 (West 1984). Physicians who maintain an interest in a clinical laboratory
to which they refer patients are guilty of public offense punishable by up to one year imprisonment,
by a fine not exceeding $10,000, or both. Id. § 654.1.
136. Moore v. Regents of the Univ. of Cal., 793 P.2d at 497 (Arabian, J., concurring).

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1992 MOORE V. REGENTS 241

judgment of a physician to the detriment of his or her patient. Judicially

addressing a topic so closely related to human moral, social, and religious
values takes away the right of the people, through their legislators, to
debate and resolve the issue by political process. This case does not involve
a legislative failure to address a recurring situation. The legislature has
not yet had an opportunity to consider facts such as those presented by the
Moore case; the court, therefore, should attempt to fashion that remedy
which least infringes upon the legislature's future course of action. Hav
ing taken notice in their ruling on conversion of concerns similar to those
expressed by Justice Arabian, the majority then abandon their deference
to the legislature in favor of a judicial expansion of the doctrine of in
formed consent.

Aside from the possible conflict with the legislature's goals, the major
ity's extension of the informed consent doctrine is inconsistent, from a
practical standpoint, with their refusal to extend the doctrine of conver
sion. Many of the potential problems the majority cited in refusing to
extend the conversion doctrine are equally applicable to the extension of
informed consent. Of primary concern to the court was the need to bal
ance the competing interests of researchers and patients. Commentators
have argued that recognizing property rights in human tissue would be
detrimental to both researchers and patients. Recognizing property rights
in human tissue would result in additional costs and time demands to
researchers, who would have to maintain more extensive records and pos
sibly have to pay tissue sources. The majority was concerned that re
searchers would be subject to law suits if they unknowingly used tissue
samples for purposes for which no consent had been given.137 The court
analogized a researcher's use of a human tissue sample to a purchase of
ticket in a litigation lottery.138 Eventually, some researchers could be
forced to scale back their research efforts due to a lack of funds. In addi
tion, it is highly likely that the additional costs would be passed on to
consumers of the new drugs and treatment procedures produced from re
search efforts aided by human tissue sources.139
The majority's decision to allow Mr. Moore to proceed under the doc
trine of informed consent, however, leaves the scope of liability un
resolved. If the remaining defendants are found liable under the informed
consent doctrine, an enormous amount of paperwork will be necessary to
track the original possessor of the removed tissue, and obtain consent for
each proposed research project utilizing that tissue or any product created
from that tissue. The potential liability of secondary users was one of the

137. Id. at 494.

138. Id. at 495-96.
139. See Note, supra note 99, at 633-42 for a detailed discussion of the impact of allowing com
pensation for tissue and cells. See also Danforth, Cells, Sales, and Royalties: The Patient's Right to a
Portion of the Profits, 6 Yale L. & Pol'y Rev. 179 (1988).

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242 FOOD AND DRUG LAW JOURNAL Vol. 47

reasons the court cited in sustaining the defendants' demurrer to the con
version cause of action.140 The majority concluded that none of the de
fendants other than Dr. Golde could be held liable under the allegations
of Mr. Moore's complaint, because none stood in a fiduciary relationship
with him or had a duty to obtain his consent.141 In the absence of a recog
nized theory of secondary liability such as respondeat superior, the other
defendants could not be held liable.142 This conclusion, however, makes
little sense. Under the court's ruling, the other defendants can use Mr.
Moore's cells for whatever purpose they desire, regardless of Mr. Moore's
wishes. One could argue that any time a researcher secures human cells
for research or commercial purposes, whether directly from the patient or
from a researcher at another facility, that researcher places himself or her
self in a fiduciary relationship with the cell source. That researcher then
should have a duty to inform the source of the purposes for which he or
she plans to use the cells, and to obtain the source's consent. Cells are
often placed in large tissue depositories,143 where physicians such as Dr.
Golde have little control over them. To hold Dr. Golde liable for subse
quent unauthorized uses by other researchers would be unjust. If Mr.
Moore had the right to control the disposition of his tissue, then that right
should not have been cut off because the researcher who defied his wishes
is not the researcher who initially owed him a duty of disclosure.
Arguably, allowing body parts to be treated as property would not be in
the best interests of the tissue source either. The financial incentive could
induce desperate people to go out and market healthy, relatively nonvital
body parts, such as gall bladders, appendixes, and spleens. Although this
fear may be somewhat unrealistic, it is less unrealistic to foresee sick pa
tients delaying necessary medical procedures in order to have assessments
made of the economic value of their diseased body parts.144
The majority's extension of the informed consent doctrine may result in
the same problems. The supreme court has offered the lower court no
guidance in setting damages should Mr. Moore maintain his cause of ac
tion. If damages are to be assessed as a percentage of the proceeds paid to
UCLA and Dr. Golde by Genetics Institute and Sandoz Pharmaceuticals,
then the court is effectively putting a dollar figure on the value of Mr.
Moore's spleen; if the court is willing to acknowledge that Mr. Moore's
spleen has a market price, then they are tacitly recognizing a conversion,
whether they acknowledge it or not.
On the other hand, if damages are not assessed as a portion of the
profits, what can Mr. Moore gain if he wins the lawsuit on this cause of

140. Moore v. Regents of Univ. of Cal., 793 P.2d at 493-96.

141. Id. at 486-87.
142. Id.
143. Id. at 494-95.
144. Id.

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1992 MOORE V. REGENTS 243

action? Under existing informed consent law, Mr. Moore would

show that an undisclosed injury occurred, and that Dr. Golde negl
failed to disclose the risk. In addition, he would have to show t
the risk been disclosed, he would not have undergone the splenect
It is agreed that the splenectomy was successfully performed and
procedure was a necessary part of Mr. Moore's treatment, thus he
bly could not recover anything in a negligence suit. In the alte
however, Mr. Moore could possibly recover damages for battery. H
cally, courts have allowed plaintiffs to recover for battery from p
who perform a procedure without obtaining consent.146 If M
could show that Dr. Golde fraudulently induced him to undergo t
nectomy, then perhaps his consent was ineffective. Although Mr.
probably could not prove fraud with regard to the splenectomy, h
tions regarding the follow-up visits to UCLA, in which Dr. G
tracted blood, bone marrow aspirate, sperm, and other bodily f
pear to state a prima facie case of fraudulent conduct. The establi
of a battery cause of action would allow him to recover punitive d
in addition to whatever compensatory damages could be proven
the court extended the doctrine, there is nothing to prevent a pati
the physician has fulfilled his or her duty of disclosure, from de
whatever the market will bear. Meanwhile, the patient's medi
tion may be worsened because of a delay in initiating necessary tr
in order to negotiate a sale.147 Thus, even though the court has n
nized a property right in human tissue, the Moore decision will f
medical community to give patients the information necessary
them to sell their tissue like any other property. Had the legislat
ated this new duty of disclosure, they could have limited a res
liability and specified maximum amounts which could be paid f
body parts.
In extending the informed consent doctrine, the court has also
clear the standard by which a doctor's duty of disclosure is to
sured. The majority acknowledged this in a footnote to their opin
some cases, however, a physician's research interest might play
insignificant role in the decision to recommend a medically indica
cedure that disclosure should not be required because the intere
material."148 Would the court have overruled the defendants' dem
the informed consent cause of action if Dr. Golde's pre-surgery
tion had not paid off? After all, it took him five years to realize a
cial gains from his research on Mr. Moore's spleen. The court

145. See supra note 77 and accompanying text (discussing informed consent guidelines s
Cobbs v. Grant, 502 P.2d 1 (Cal. 1972)).
146. See supra notes 71, 78 and accompanying text.
147. See supra text accompanying note 146.
148. Moore v. Regents of Univ. of Cal., 793 P.2d at 483.

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244 FOOD AND DRUG LAW JOURNAL Vol. 47

allowing hindsight to color their characterization of Dr. Golde's actions

prior to performing surgery. This could be a serious distortion of existing
negligence law, in which a person's conduct must be viewed from the
standpoint of a reasonable person at the time of the conduct which was
allegedly negligent.

C. The Court's Extension of Informed Consent May Not Have Been

Necessary to Allow Mr. Moore a Recovery

Unfortunately, all of the court's contortions probably could have been

avoided. The statutes governing the use of human subjects in medical ex
periments149 are not so clearly inapplicable to the allegations of Mr.
Moore's complaint that they could not have been broadened to allow him
a statutory cause of action. The only difficulty in applying the legislation
to the facts in Moore is that Dr. Golde's research interest was a secondary
consideration to the medical reasons for removing Mr. Moore's spleen.
Liberally construing the statutes, however, would have enabled the court
to give Mr. Moore a limited financial recovery, while deterring similar
conduct by future researchers through the imposition of the more severe
criminal portion of the legislation. Expanding these statutes would have
had a much more limited affect than the judicial extension of California's
informed consent doctrine, and would have achieved a result more consis
tent with the legislature's intentions. Such a statutory interpretation cer
tainly would not be as difficult to support as the expansion which the
court ultimately made in their ruling on informed consent. The legislature
is now faced with the task of preventing the court's expansion of informed
consent law from becoming the very nightmare that the court had hoped
to avoid by refusing to extend conversion.

V. Conclusion

The question of ownership rights in human tissue has so man

cations for researchers and patients that no court decision coul
erly address all, or even a portion, of them adequately. Unfort
California Supreme Court was called upon to address precisel
tion in Moore. Faced with a situation which compelled some typ
the court chose to act in an area best left to the legislature, wh
same opinion acknowledging that the legislature was better
provide a remedy. Indeed, the court cited as one reason for not
the conversion doctrine that the legislature is better suited to
extension.180 Certainly, this argument is just as valid when
the extension of the informed consent doctrine. Statutes gover

149. Cal. Health & Safety Code § 24,170-24,176 (West 1984). See supra no
accompanying text.
150. Moore v. Regents of Univ. of Cal., 793 P.2d at 496.

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1992 MOORE V. REGENTS 245

quirements of informed consent, in the context of injury ris

with specific medical procedures and of medical experimen
human subjects, show that the legislature has taken a strong i
the area of informed consent law. Not only has the legislat
for civil penalties where a physician fails to meet disclosure r
but it has provided for criminal penalties to be imposed for w
tions, such as that alleged by Mr. Moore. Clearly these legi
ments, and the questions left unanswered regarding damag
duty of disclosure, and record keeping, show that the legislat
better equipped to fashion a remedy for plaintiffs in Mr. Moo
than the courts.
Further, the court provided a detailed policy analysis with re
extension of the conversion doctrine to the facts of Moore. Much of the
policy argument which the court raised in refusing to extend the conver
sion cause of action could be applied with equal conviction in considering
the expansion of the informed consent doctrine. The problems that could
arise as a result of allowing the informed consent action are no different
from those that would have arisen had the court recognized the conversion
cause of action, and are entirely beyond the court's reach. If these policy
considerations warrant denying Mr. Moore a conversion cause of action,
they also warrant denying an informed consent action.
The court was commendably concerned with fashioning a remedy for
Mr. Moore, pointing out that sustaining the demurrer to the conversion
cause of action would not deny Mr. Moore a remedy. The decision to
allow him to proceed with the informed consent action, however, may not
have been necessary for Mr. Moore to recover damages, as he might well
have been able to get his complaint under existing legislation protecting
human subjects of medical experiments.
The impact and acceptance of the Moore decision on medical science
and law remains to be seen, and there is every chance that the case will
end up back in the California Supreme Court before a final resolution is
reached. Hopefully, the decision will encourage legislators to take the ini
tiative before another court is confronted with a similar situation. As the
Moore opinion demonstrates, ownership rights in human tissue are diffi
cult to characterize and define. Unfortunately, the California Supreme
Court's decision fails to resolve many of the most critical issues.

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