At Law: Whose Waste Is It Anyway? The Case of John Moore

Abstract

Whose Waste Is It Anyway? The Case of John Moore The watchword of the grasping eighties has been profit, and medicine has not been exempt. Three happenings in the summer of 1988 are emblematic, and how we deal with them will help set the tone for the 1990s: the appearance of large amounts of medical wastes on our nation's beaches; the indictment of a Queens, NY physician for Medicaid fraud; and an opinion of a California Appeals Court involving the alleged wrongful taking of tissue by a physician from his patient. The first two occurrences are relatively straightforward. Widescale pollution and the despoilment of the environment are the inevitable results of failure to plan properly for and manage waste disposal. Profits are large in selling nonreusable medical products, and undoubtedly can also be made by cutting corners in waste disposal. We will all now bear the cost of the cleanup. Medicaid fraud is no longer uncommon, but the New York scheme has a wonderfully macabre quality about it. Since 1986, a physician and his codefendants allegedly drew blood from poor people (whom they paid as little as fifty cents a vial), processed the blood in their medical laboratories, falsely claimed it was from Medicaid patients, and billed the government (at up to $2,000 a sample tested) for more than $3.6 million. [1] The final example, which is much more ambiguous, involves elements of each of the first two: unusual disposals of medical waste and making large amounts of money by using human tissue in novel ways. The lawsuit has not yet been tried, and court opinions to date have only dealt with the question of whether an individual can sue for the unauthorized use of surgically removed tissue. Even so, the decision has already been called "one of the most important cases of the decade," [2] and although this is hyperbole, the case does crystallize some of the most troublesome issues in medicine in the 1980s, including the monetarization of medicine, truth and trust in the doctor-patient relationship, and the effects of commercializing both human cells and academic research laboratories. The Case of John Moore In 1976 john Moore, then a surveyor on the Alaskan pipeline, sought medical treatment for hairy-cell leukemia from hematologist-oncologist David W. Golde at UCLA. As is standard procedure in this disease, Dr. Golde removed Moore's spleen, which had enlarged from about a half pound to more than fourteen pounds. Moore quickly improved. Golde took a sample from the spleen and isolated and cultured an immortal cell line capable of producing a variety of products including the lymphokine GM-CSF (granulocyte-macrophage colony stimulating factor) currently being tested as an AIDS treatment. In 1979 Golde filed a report of possible patentability with the University of California. In 1983 the university applied for a patent on the cell line naming Golde and his research assistant, Shirley Quan, as inventors. The patent was granted in 1984. Moore, who had since moved to Seattle, had been coming back to see Golde about every six months. He has told an interviewer that he never would have known about the existence of the cell line had Golde not called him in September 1983 and told him he had "missigned the consent form" (circling I "do not" instead of I "do" grant the University all rights in "any cell line...."). Moore then decided to consult attorney Sanford Gage. [3] In September 1984 Moore filed suit against the University of California, Golde, Quan, Genetics Institute, Inc., and Sandoz, alleging eleven types of wrongdoing (including conversion, lack of informed consent, and breach of fiduciary duty) and seeking an accounting and other relief. The trial court essentially decided that Moore had no right to bring suit. Moore appealed, and in July 1988 a California Court of Appeals, in a two-to-one decision, determined that Moore had stated a proper cause of action for conversion. …