In an interesting and novel decision, the Ontario Superior Court has ruled that human tissue excised from a patient during a medical procedure is property and, beyond that, is the property of the hospital that removed it. In Piljak Estate v. Abraham, the plaintiff alleges that the defendant doctor negligently conducted a colonoscopy on Ms. Piljak, now deceased, and that he should have detected the hereditary colorectial cancer to which Ms. Piljak succumbed. The defendants sought to have genetic testing done on a piece of tissue excised during the colonoscopy in an effort to show that the disease to which Ms. Piljak fell was not readily detectable.
However, the crux of the issue appeared when the Court attempted to interpret the terms of rule 32.01, which allows for inspection of property during the course of a lawsuit. Under 32.01, a party may move to inspect ‘real or personal property’ a blanket term used to describe ownership or other legal rights with respect to a thing or object. The Court quickly concluded that tissue could constitute property, but raised the larger question of to whom it belongs. Unable to find any jurisprudence on point, the presiding Master Dash turned to an article which had recently appeared in the Canadian Medical Association Journal dealing with rights to access excised human tissue. In the article, the authors noted that, once excised, the tissue sample becomes part of the person’s ‘medical record’ under Regulation 965 of the Public Hospitals Act and its ownership is vested in the institution that maintains the record. At best, the authors conclude that a patient has a right to ‘reasonable access’ to the tissue. Finding the article persuasive, Master Dash found that the anatomical property belonged to the hospital.
Despite holding that the excised tissue was property, Master Dash nonetheless rejected the defendant’s request to inspect the material. He noted the failure of the defendants to produce a satisfactory methodology for examining the tissue and to show that sufficient tissue would be available for the medical record after the inspection.
Master Dash’s decision is the first on this novel area of law in a Canadian court. While it is likely that future cases will expand and clarify the law, Piljak remains significant. In a world where the possibilities with genetic material, coding and replication are multiplying, it’s not hard to understand why some may want to retain ownership rights in their tissue (one need only think of Henrietta Lacks, whose genetic material was collected and used, without consent, for the development of gene mapping as well as extensive scientific research). It will be interesting to see the development of the law in this area and whether courts will continue to follow Master Dash’s approach.