This is part three of an Article by Bruce Rushton recently published in the Riverfront Times concerning a Missouri Federal District Court case, in which we are participating, concerning the novel issue of who owns tissue and serum samples donated by grateful patients to a particular surgeon for his research . [email protected]
Floyd Holder, attorney for the families and Poduslo, says Texas Tech released the samples rather than risk public embarrassment. "What I did down here is I sued Texas Tech and said, 'By keeping these, you're violating a public trust,'" Holder recounts. "By being selfish and keeping them from my client, who went to the University of Georgia, what they're doing is forsaking their duty as trustee. I said, 'It's a breach of their duty, and the remedy is to appoint a new trustee.' And the judge said he jolly well would do it if he found they're not in a position to continue the trust."
Though the university argued that it should not be stripped of its trusteeship, Texas Tech moved many of the samples, rendering the lawsuit moot, Holder says.
Suzanna Martinez, spokeswoman for the Texas Tech University Health Sciences Center, says the school shipped the samples after receiving new consent forms from donors or their legal representatives authorizing the transfer. "The fight was more about Poduslo needing to get new consents, because those people never consented to take those wherever they wanted," Martinez says. "Once she received those new consents, that's why we allowed her to take them. Because then, legally, we could give them to her."
Holder says donors should decide who gets their tissues. "If the [donors] really want it, let's move them," the attorney says. "What's the point in fighting over it? What good does it do? There's only one common-sense thing to do. In the words of the immortal Rodney King: Can't we all get along?"
Apparently not.
Dr. Eric A. Klein, a prostate-cancer researcher at the Cleveland Clinic Foundation in Ohio, notes that consent forms used by researchers there and at Washington University state that samples will be used by researchers, or destroyed if a donor withdraws consent. Transferring jurisdiction isn't discussed. "Those are the only options," Klein says. "There's not an option up front for the patient to have the samples transferred elsewhere. This is just my opinion, now, but I don't think that a university or some other medical system could be compelled to do that if the only options that were presented to them in the consent form was: Either let us use them or they'll be destroyed."
Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, says he's never heard of a case like the one between Catalona and Washington University. He says he doubts the original consent forms give legal custody to the doctor. "Normally, a doctor can't handle them," Caplan says. "You've got to give them to the school. The doctor can say, 'I'm going to use them,' or, 'I'm going to have exclusive control over them,' or whatever. It's very hard for someone to donate tissues to an individual doctor."
Legalities aside, Caplan says the focus should be on ethics.
"Ethically, I'd like to see them honor these requests," Caplan says. "People make these gifts -- and they are gifts -- and certainly you can say, 'I made the gift contingent on the fact that this doctor's going to work with these tissues. I know that Wash. U. has control, but I really gave them because I like this doctor. If he's moving and he wants them, he should have them.' I think, ethically, the school should honor that, if they want to keep getting people to give tissues to them.
"Normally, when pushed, a school would probably say, 'OK, take it,'" Caplan adds. "I'm suspicious that there's something unique or valuable here that they're fighting over."
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