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Ruling Assigns Tissue to Facility, Not Individual

Victor Lewin - Thursday, June 12, 2014

In a case with implications on how medicine is practiced in Nova Scotia and across the nation, an Ontario court determined on June 4 that human tissue is the property of the medical facility that obtained it and not the patient from which it came. The case could be contested in other jurisdictions or by the family, but if the ruling holds, it could have widespread ramifications for Canadians over how genetic information, tissue samples and even blood are handled.

The controversy in the case related to a woman who was hospitalized in 2009 in Toronto and was diagnosed with cancer. She passed away in 2011. Her estate filed a medical malpractice lawsuit, claiming that doctors were negligent when they found her cancer-free in 2009. Two of the defending doctors wanted to submit the liver biopsy from that time for further analysis as they thought the biopsy might show that the woman had suffered from a heredity cancer that worsens very quickly and is often undetectable during initial testing. However, they did not have legal access to the sample.

The court determined that the tissue sample belonged to the hospital because it had obtained the sample and performed diagnostic tests. The court also designated the tissue as personal property. A policymaker with the University of Alberta explained that the decision seems merely procedural on the surface, but it could have significant implications.

The Canadian ruling is generally in line with court rulings in the United States. In the highly publicized case of one woman, her tissue was used for scientific research and development without her knowledge or permission. Possession of tissue, blood or DNA samples is a questionable area. A personal injury lawyer might be able to contest the outcome of a court ruling for possession of tissue.

Source: National Post, "Human tissue removed for medical tests is 'personal property' of institution, not person it came from: ruling", Richard Warnica , June 05, 2014

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