Moore took the doctor to court using two arguments: that the doctor had a fiduciary duty to Moore to tell him about the profitability of his spleen, and that the doctor had stolen the spleen. In John Moore v. The Regents of the University of California Supreme Court of California, 51 Cal. 3d 120 (1990), the California Supreme Court said that Moore could go to trial on the fiduciary duty cause of action, but not on the "conversion" theft one.

This seems the right outcome. When a person's spleen is removed, nobody thinks it amiss if the doctor throws it away. Indeed, it would be weird if the doctor handed the patient the spleen in a baggie after the operation in the fashion of car mechanics who give you your old muffler if you want it. (The difference is that we are sometimes suspicious as to whether the mechanic actually replaced the muffler, or just charged us for a new one. It could be that the doctor did not remove the spleen, but that is a more remote possibility.) And if said that the patient has a right to his spleen, we'd have to say he has a right to his blood too, which would have to be carefully collected after an operation.

On the other hand, the breach of fiduciary duty is clear too. I hire a doctor to give me good advice about my body. That includes telling me if I have a gold mine in my belly. Such is Point One.

Point Two is that if the doctor is allowed to make money by selling my body parts, he has a conflict of interest. If he advises me that my spleen should be removed, he may be doing it to make a million dollars by selling it. This conflict of interest is likely to make a difference at the margin, even if there is a good case to be made that my spleen needs removing anyway. At the very least, the doctor should tell the patient: "My best medical advice is that we should remove your spleen, but I should warn you that I will make a million dollars doing so, whereas I get nothing if you don't have it removed." A smart patient would then get a second opinion-- even if the law is that the doctor who performs the operation keeps the spleen.

Mr. Moore's case would, it seems to me, have great appeal to a jury, even if it didn't have merit. A rich doctor and a great university deceived a cancer patient in order to make what for them is just a few extra bucks. But apparently he settled for a relatively small amount. "The Strange Case of John Moore and the Splendid Stolen Spleen", an MA thesis, follows the history of the case. The writing style makes it hard to follow, but the document does contain good information. In particular:

In March of 1991, Moore was denied Certiorari by the Supreme Court of the United States. Moore's attorney Gage thought that, with the current caps on medical liability in place in California, further pursuing of the case was not economically viable. It is interesting that such an important case in science and law never actually made it to trial.

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