Attachment 4

April 5, 1948 letter from C.J. Watson, M.D., Army
Epidemiological Board to Dr. McLeod, with a copy to Dr.
Stokes and others

                          War Department
                  Office of the Surgeon General
                    ARMY EPIDEMIOLOGICAL BOARD
                        United States Army


                                   April 5, 1948

Dr. Colin M. MacLeod
New York University
College of Medicine
477 First Avenue
New York 16, N.Y.

Dear Dr. MacLeod:

     I have given careful consideration in the past few weeks to
the matter of using volunteers in penal institutions for
experimentation, with particular reference to hepatitis.  Three
weeks ago I had a conversation with Mr. Durnquist, the Attorney
General of the State of Minnesota, with respect to the
possibility of conducting experimental work on volunteers in the
Minnesota penitentiaries.  Mr. Durnquist was favorably inclined
to the idea and quite optimistic about its feasibility.  Later I
had a lengthy discussion with Dean Everett Fraser (Law School)
and with Dr. Vold of the Division of Criminology of the
Department of Sociology in the University.  I asked them
specifically whether a waiver signed by the volunteers would be
legal at a later date, insofar as evidence of responsibility for
disability or death was concerned.  I asked this question both
with respect to a waiver made out to the individual experimenter
as well as to one assigned to the official agency sponsoring the
research, that is to say, the army Epidemiological Board of the
War Department.  They did not believe that such a waiver would be
of much value, although they stated that so far as they knew
there was no precedent in law to determine in advance what might
happen in case of a suit.  They pointed out that a clever
attorney at some later date might very well be able to overthrow
such a waiver and get a judgment against an experimenter in case
of a disability or even succeed in having him declared guilty of
homicide in case of a death.

     Mr. Vold stated that there might be some recorded law ___ing
on this whole matter in the state of Massachusetts.  He pointed
out that during the war volunteer prisoners were used for the
testing "of synthetic blood serum", and that one or more deaths
in addition to a number of severe illnesses resulted.  He
suggests one might get all the information about this from the
Commissioner of Correction of the State of Massachusetts, State
House, Boston.  Mr. Vold also informed me of an interesting point
that may have no bearing on the present matter; namely, that the
brains of criminals executed in New York state are removed by law
or at least

COPIED:  12/2/94
RECORD Group:  # 334
Entry: #14
File:  Commission on Liver Diseases on Human Volunteers for
Hepatitis Studies in Feb. 1945

Dr. Colin M. MacLeod                    April 5, 1948

by state prerogative, but that the body is not available for
dissection unless it is unclaimed.  While this is probably not
germane to the problem of using volunteers for experimentation,
Mr. Vold thought that it might be of interest to determine
whether there is any written law concerning this prerogative and,
if so, how it has been established.

     There is, of course, precedent for the use of volunteers for
experimental purposes, as for example in Illinois and New Jersey. 
According to my legal friends, however, the responsibility for
these experiments would devolve entirely upon the individual
experimenter in case of a later suit or complaint.  The mere fact
that the warden or the state authorities give permission to the
experimenter to ask for volunteers in no way removes his
responsibility, not does it place any of it on the state.  This
at least is the interpretation that Dean Fraser put upon the
question, although he admitted that he knew of no law by which
any real decision could be reached in advance.

     I have given considerable thought to the matter of whether
it would be advisable to approach individuals or groups in
Congress with the idea of having laws passed relating either to
payment of compensation for disability or release of the
experimenter from liability.  I am afraid that this would be a
very dangerous course, and that it might in fact, injure clinical
investigations generally.  There is a very real possibility that
unfavorable publicity would quickly result.  Dean Fraser and his
colleagues were in thorough agreement on this point.

     I have concluded then that any human experimentation must be
carried out in the future as in the past, on the basis of the
sole liability of the individual experimenter.

     I should be glad to hear from you or from others to whom
copies of this letter are being sent as to any alternative
approaches to the problem that the may have in mind.  I think it
would be well if someone could look in the Massachusetts
experience as mentioned above.

     With kindest regards,

                              Sincerely yours,

                              C. J. Watson, M. D.
CS/vr
cc: Col. F. Rauer
    Dr. W. P. Havens
    Dr. J. Neefe
    Dr. J. Stokes
    Dr. J. Paul
               P.S.:  I do feel strongly, however, that if the
               Army approves and finances a specific research
               involving human experimentation, with the
               intention of accepting and utilizing any practical
               results therefrom, it should be willing to
               obligate itself to the protection of the
               experimenter, at least to the extent of purchasing
               a special insurance policy for each project of
               this type, covering disability or death.  (By this
               I mean one comparable to a malpractice policy ,
               protecting the experimenter against later suit for
               compensation.  Obviously, no publicity should be
               given to this.)

COPIED:  12/2/94
RECORD Group:  # 334
Entry: #14
File:  Commission on Liver Diseases on Human Volunteers for
Hepatitis Studies in Feb. 1945