were therapeutic?' Moore's active treatment ended with the splenectomy? Nevertheless, the California Supreme Court treated the case as ordinary medical malpractice, regarding Golde's repeated duplicitous invasions as though they were 'treatment" and the research as simply a standard medical conflict of interest, analogous to a physician's ownership of a pharmacy to which he might refer his patients. Although the court agreed there had been breach of informed consent and of fiduciary duty, its analysis was deeply problematic. First, the medically pointless tissue removals could not have been malpractice because they were not medical practice at all?9 Second, applying standard malpractice tort concepts to this situation underrates the wrong Golde did. Medical malpractice requires not just that the physician breach a duty of care, but that this breach cause an injury - typically a physical injury. However, though Moore was caused inconvenience, personal expense,5O and the discomfort of needless punctures, these were hardly the most important injury. Moore was exploited, completely without his knowledge or consent, for ulterior purposes. Yet this dignitary offense is not typically deemed a compensable injury under malpractice law. And while the court did find that Dr. Golde breached his physician-patient fiduciary duty, breaches of fiduciary duty do not ordinarily give rise to significant non-economic damage awards. The court denied Moore's property claim to the financial proceeds of the cell line, leaving him with only a limited settlement. Hence, standard medical malpractice theories appear too limited to address the significance of the abuse. A similar problem appears in Kentke v. The Menninger Clinic In~.~l A schizophrenia patient, voluntarily admitted to a psychiatric hospi- - _. ti~nship."~~ This reasoning is misguided. Admittedly, some of Kernke's care was routine and would rightly be addressed under familiar malpractice doctrines. But the bare fact that a physician has performed an intervention requiring professional knowledge or skill does not mean that intervention was medical practi~e.5~ Much of Kernke's care was not ordinary, including the washout period and the experimental medicati0n.5~ In contrast to the foregoing cases, a few courts grasp a major distinction between research and ordinary medical care. In one such case the plaintiffs, suffering from lymphoma, had been enrolled in a trial that was discontinued. When they demanded to be entered into a new research study, the court denied they had any valid claim. Research is not treatment. Experiments require measurements and conditions that may not be therapeutically significant. The disappointment of patient-participants is not the result of awrong inflicted on them; they are frustrated in not receiving a potential cure, but they were permitted to have the drug for the purpose of research - the [M.D. Anderson Cancer Center's] purpose not theirs. They were the incidental, gratuitous beneficiaries of the research .... Research is not standard; it is speculation, approximation, and inquiry.55 Once courts appreciate this distinction, it becomes evident that standard medical tort doctrines must be modified to accommodate the special features of research. Four will be considered here. The first two, negligence and breach of fiduciary duty, will be discussed in the next section. Informed consent and battery, the dominant causes of action in research abuse, will receive special attention in the following section. Across this spectrum, the message is not that research injuries are somehow worse (or "better") than medical malpractice, or that we need to augment (or diminish) the available causes of action against research errors. The message is simply that research is different, and that courts need to be more knowledgeable and to think more clearly if they are to build an adequate foundation by which to guide conduct in this increasingly important realm. Adapting Causes of Action to the Research Context Negligence At the outset we should acknowledge that even the most cutting-edge research often features elements of ordinary care, which as such should be addressed under the doctrines of routine medical malpractice. If a surgical procedure is involved, for example, it must be performed with standard techniques of antisepsis, the failure ofwhich would be ordinary malpractice even if the surgery itself is experimental. Innovation, too, should generally fall under ordinary malpractice standards, which accommodate variations in care via the doctrines of reputable minorities, physician's best judgment, and other avenues for fle~ibility.~~ When research injuries are pursued as negligence torts, a major THE JOURNAL OF LAW, MEDICINE B ETHICS E. Haavi Morreim shift must be recognized. As in all tort litigation, three elements must be satisfied: duty of care, injury, and causation. However, in research litigation, special attention must be directed toward the first element, the standard of care the investigator owes the research subject. For research, that duty diverges strikingly from ordinary medicine, both in its content and its sources. The standard of care for medical practice emphasizes conformity to customary and prevailing practices, even while it accommodates variations.57 In contrast, research cannot be judged by its conformity to customary practice