Does a patient state a cause of action against his treating physician for breach of fiduciary duty or lack of informed consent when the physician conceals a preexisting research and economic interest in the patient's cells, and does the unauthorized use of those excised cells in commercially valuable research constitute conversion of the patient's property?

John Moore sought treatment for hairy-cell leukemia at the UCLA Medical Center in 1976 under Dr. David Golde. Golde withdrew blood, bone marrow, and other substances to confirm the diagnosis, then recommended removal of Moore's spleen, telling Moore he had reason to fear for his life and that the operation was necessary to slow the progress of his disease. Moore signed a consent form for the splenectomy. Before the surgery, Golde and researcher Shirley Quan allegedly formed the intent to obtain portions of the spleen for research unrelated to Moore's care, but never told Moore. Between 1976 and 1983, Golde had Moore return repeatedly from Seattle to UCLA, representing that the visits were necessary for his health, and withdrew blood, serum, skin, bone marrow, and sperm each time. Meanwhile, Golde and Quan established a cell line from Moore's T-lymphocytes. The Regents of the University of California obtained a patent on the cell line in 1984, naming Golde and Quan as inventors. Golde and the Regents negotiated lucrative commercial agreements with Genetics Institute and Sandoz Pharmaceuticals, including stock options, consulting fees, and research payments. When Moore asked whether his cells had commercial value, defendants allegedly told him they did not and discouraged such inquiries. Moore sued, alleging 13 causes of action, including conversion, lack of informed consent, and breach of fiduciary duty.

Moore filed a 13-count third amended complaint against Golde, the Regents, Quan, Genetics Institute, and Sandoz. Each defendant demurred. The superior court expressly considered only the conversion count, held it defective, and, reasoning that the other counts incorporated the defective allegations, sustained a general demurrer to the entire complaint with leave to amend. It later sustained Genetics Institute's and Sandoz's demurrers without leave to amend, finding no conversion cause of action and the secondary-liability allegations too conclusory, and took the remaining demurrers off calendar. With one justice dissenting, the Court of Appeal reversed, holding that the complaint stated a cause of action for conversion. It agreed that the allegations against Genetics Institute and Sandoz were insufficient but directed that Moore be given leave to amend, and it directed the superior court to rule on the remaining causes of action. The California Supreme Court granted review.

(Panelli, J.)

Yes as to breach of fiduciary duty and lack of informed consent; No as to conversion.

A physician seeking a patient's consent to a medical procedure must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment. A competent adult has the right to determine whether to submit to treatment, consent must be informed, and a physician has a fiduciary duty to disclose all information material to the patient's decision. Cobbs v. Grant, 8 Cal.3d 229 (1972). A physician with a preexisting research or economic interest may, consciously or not, let that interest influence his recommendation, so the interest is material. Moore alleged that Golde had an undisclosed research interest in his cells before the splenectomy and concealed his economic interest during the postoperative procedures. That states a cause of action against Golde even if the splenectomy had a therapeutic purpose, because a nontherapeutic motive is itself a potential conflict of interest. The nonphysician defendants owed no fiduciary duty, so their liability depends on a theory of secondary liability, which the court declined to decide, sustaining those defendants' demurrers with leave to amend.

Conversion requires an ownership or possessory interest in the property. Three considerations defeat Moore's claim. First, no case supports conversion liability for the use of excised human cells, and statutes governing human tissues, organs, blood, and remains treat such materials as sui generis rather than ordinary personal property. Second, Health and Safety Code section 7054.4 so drastically limits a patient's control over excised cells that it cannot be assumed any ownership remains. Third, the patented cell line is factually and legally distinct from Moore's cells and is a product of human ingenuity, so it cannot be his property.

Extending conversion would also be unwise. Because conversion is a strict liability tort, it would expose innocent researchers to liability and impede the free exchange of cell lines, harming socially valuable research. Questions of this kind are better resolved by the Legislature. The fiduciary-duty and informed-consent theories already protect patients directly.

Concurrence (Arabian, J.) The case raises moral, philosophical, and religious questions that courts should not resolve. Treating human tissue as a commodity to be sold for profit implicates human dignity, and recognizing a property interest in body tissue carries unknown and greatly feared consequences. The Legislature is the proper forum, and judicial restraint is warranted because plaintiff retains a remedy through the fiduciary-duty claim.

Concurrence and Dissent (Broussard, J.) Concurs that the complaint states a breach of fiduciary duty claim and that the other defendants' demurrers should not have been sustained without leave to amend, but dissents on conversion. Before removal, a patient controls the use to which a body part will be put, as the Uniform Anatomical Gift Act confirms. Under Restatement sections 227 and 228, unauthorized use of property or interference with the right to control its use is conversion. Defendants allegedly interfered with Moore's right of control by withholding material information before removal, which states a conversion claim. The majority's policy concerns about innocent researchers using cell repositories are overstated and do not justify immunizing defendants who allegedly obtained cells by improper means. The majority answered that concealment of material facts already supports a fiduciary-duty claim, so no new cause of action is needed. It also said that limiting conversion to cases of invalid consent would not ease the threat to research, because a consent's validity cannot be known until a lawsuit is resolved. Any recovery would reflect only the value of the raw material, not the researchers' own labor.

Dissent (Mosk, J.) Moore adequately alleged ownership of his cells. No case rejects such a claim, and the common law's capacity to evolve is a reason to recognize it. Section 7054.4 permits only scientific use, not commercial exploitation, and in any event limits on use do not eliminate property. The majority replied that it saw no reason to believe the Legislature meant to exclude commercial research from scientific use. Organs and blood can legally be sold, and the patent does not erase Moore's essential contribution, as the joint-inventor policy suggests. The majority answered that changing the joint-inventor definition is a matter for Congress. Policy favors recognizing the claim. Respect for the human body and fairness forbid exploiting a patient's tissue for another's sole profit. Researchers can avoid liability through proper recordkeeping of consent, and the threat of litigation is far less than in Brown v. Superior Court. The majority answered that consent documentation carries no guarantee of validity. The nondisclosure claim is inadequate because of causation barriers, because it gives a patient only a veto and no share of profits, and because it fails to reach nonphysician defendants. The majority's scientific discussion also relies on materials outside the record. The majority replied that this court has cited scientific literature before to explain the technical background of a case.