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Kerns v. Schmidt6/9/1994
vate civil action. Fawcett, 46 Ohio St.2d at 248-249, 75 O.O.2d at 293-294, 348 N.E.2d at 146-147.
By contrast, R.C. 3111.30 through 3111.38 provides no remedy whatsoever for a violation of the physician's duty to obtain consent of a nondonor husband. Moreover, there is support for a finding that a physician's duty to obtain consent prior to performing a medical procedure existed at common law and is not "solely the creature of statute." Id. at 249, 75 O.O.2d at 293, 348 N.E.2d at 147.
We disagree with the trial court that the lack of a statutory remedy for a physician's failure to comply with the consent requirements of R.C. 3111.30 through 3111.38 left Kerns without possible legal recourse against Schmidt. The trial court's holding fails to acknowledge that a physician's violation of the statutory requirement of consent could constitute an interference with thshusband's choice not to procreate, which has been recognized as a constitutionally protected privacy interest. Bowman v. Davis (1976), 48 Ohio St.2d 41, 46, 2 O.O.3d 133, 135, 356 N.E.2d 496, 499.
In Bowman, plaintiffs filed a complaint against Mrs. Bowman's doctor, alleging he was negligent in performing a bilateral partial salpingectomy, a tubal ligation. Following the surgery, Mrs. Bowman became pregnant and gave birth to twins. The Ohio Supreme Court found plaintiffs had a valid cause of action. The court stated:
"* * * For this court to endorse a policy that makes physicians liable for the foreseeable consequences of all negligently performed operations except those involving sterilization would constitute an impermissible infringement of a fundamental right." (Emphasis sic.) Id. at 46, 2 O.O.3d at 135-136, 356 N.E.2d at 499.
Since Mrs. Bowman and her husband gave consent to the surgery, and yet were nonetheless able to pursue a claim against her doctor, we find no reason why a husband who did not consent to a nonspousal artificial insemination should not be able to timely pursue a claim against a doctor who negligently fails to obtain his consent. In each situation, the doctor's negligence results in the parties' being burdened with the costs and expenses of childbirth. See Johnson v. Univ. Hospitals of Cleveland (1989), 44 Ohio St.3d 49, 540 N.E.2d 1370, which limits damages for wrongful pregnancy to those of the pregnancy itself and does not include the costs of child rearing.
However, in the instant case, Kerns has not stated a claim for wrongful pregnancy, or even medical negligence, possibly because the statute of limitations barred him from doing so. Instead, his action against Schmidt is for fraud which, he maintains, should not have been dismissed because such claims against physicians are maintainable pursuant to Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 514 N.E.2d 709.
In Gaines, the court held a positive misrepresentation of a patient's condition, upon which the patient relies to his detriment, was actionable as fraud independent of any claim of malpractice. Id. at paragraph one of the syllabus. The court set forth the elements of fraud as follows:
"* * * (a) representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance." Id. at 55, 514 N.E.2d at 712.
The court then stated that the evidence in G
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