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Kerns v. Schmidt6/9/1994
aines would allow a reasonable person to conclude that the elements of fraud were present and that summary judgment was an inappropriate disposition of that case.
The defendant in Gaines asserted that the plaintiff's only recourse lay in asserting a medical malpractice claim, to which the court replied:
"* * * The fraud action is separate and distinct from the medical malpractice action which stems from the surrounding facts where the decision to misstate the facts cannot be characterized as medical in nature. In the instant cause, it cannot be said that the statement to appellant that her IUD had been removed when in fact it had not was motivated by any medical consideration. Cases may exist where the withholding of information may be medically justified, e.g., where the patient's known tendency to react hysterically to bad news would interfere with vital treatment. Reasonable minds could certainly conclude that the misstatement in the instant cause was prompted not by medical concerns but by motivations unrelated and even antithetical to appellant's physical well-being." (Footnote omitted.) Id. at 56, 514 N.E.2d at 712.
Thus, the court reversed the summary judgment and remanded the matter for a determination of whether the defendant had intentionally misrepresented to the plaintiff that her intrauterine device had been removed when it had not and whether that was the proximate cause of her injury .
In the instant case, Kerns alleges that Schmidt had assured him there would be no artificial insemination without Kerns's consent, and that this statement constituted a misrepresentation which met the requirements for a cause of action for fraud. As was the case in Gaines, such a statement, if made, could not be characterized as medical in nature, or motivated by any medical consideration. Moreover, Kerns has asserted that Schmidt breached a duty to refrain from performing the nonspousal artificial insemination without Kerns's consent, and that Schmidt knew he needed to obtain such consent yet disregarded that requirement with the intent to mislead Kerns, who justifiably relied upon the assurances that no artificial insemination would be performed without his consent. Finally, Kerns has also asserted that he was damaged by Schmidt's conduct. Thus, under the definition of "fraud" set forth in Gaines, it would appear that Kerns has at least sufficiently alleged fraud to overcome a Civ.R. 12(B)(6) motion, since he has set forth in his complaint facts which, if proven, could entitle him to recovery.
In any event, the trial court's decision on Schmidt's motion to dismiss addressed only whether R.C. 3111.38 provided for a private cause of action, and did not consider either whether Kerns sufficiently alleged fraud to avoid dismissal pursuant to Civ.R. 12(B)(6), or whether Gaines would allow the spouse of srecipient of nonspousal artificial insemination to raise an independent cause of action for fraud. Given our finding that the trial court improperly held no private right of action could be maintained because the General Assembly had not so provided in R.C. 3111.30 through 3111.38, we think it necessary that the trial court now address the remaining issues as to the applicability of Gaines to the facts in the case at bar.
By so holding, we are not suggesting that the trial court is bound to follow Gaines. In Gaines, the only injured plaintiff was the patient who underwent the medical procedure. In the case of a nonspousal artificial insemination, despite the fact that only the recipient personally undergoes the procedure, the husband is an inextricable part of the process, partly because his consent is statutorily required, and partly because of the de
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