The laws do not specify the nature and extent of such rights. Presently the full implications of creating such rights are unclear. At worst, these rights will lead to exceedingly complex and unnecessary legal entanglements as well as increased research costs. The laws conflict with existing law, regulation and practice. For example, federal law on clinical laboratories requires that laboratories keep samples for at least two years.
State law requires that hospitals keep pathology samples.
State law in the area of medical malpractice allows malpractice cases to be brought for up to six years post date of treatment. Clearly a facility would need access to the pathology slides and tissue samples to defend itself in a case alleging misdiagnosis or failure to diagnose. If a patient were allowed to remove their tissue samples from the hospital, it would make it impossible for the hospital to comply with the Federal Clinical Laboratories Act and impossible to defend itself adequately against a claim of failure to diagnose or misdiagnosis. The commission believes that the creation of property rights will do little to serve, and may even contravene, the purpose of creating such rights. The commission believes that protecting privacy of medical information in conjunction with adequate informed consent about the uses to which samples will be put is a better mechanism for protecting individuals than creating a new property right in genetic samples or genetic information.