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Kerns v. Schmidt6/9/1994
gree to which procreation decisions have an impact upon both parties to the marriage. Thus, Gaines raises the question whether having the status of patient is a prerequisite for asserting fraud. Moreover, if a plaintiff must be a patient to assert fraud against a physician, the question arises as to whether the nature of the marital relationship would permit Kerns, as a person unavoidably affected by his wife's nonspousal artificial insemination, to be considered a patient for the purposes of asserting fraud. The trial court has not had the opportunity to address these questions, and we will refrain from doing so herein.
Based upon these considerations, we sustain Kerns's first, fourth and fifth assignments of error.
Kerns's sixth assignment of error charges that the trial court had a duty to enforce R.C. 3111.34 and 3111.35. By this assignment, we understand Kerns to be reiterating his assertion that the trial court erred in finding that the pertinent Revised Code sections create no private right of action. Inasmuch as we have addressed that issue under Kerns's other assignments of error, we find it unnecessary to determine whether the trial court had a "duty" to enforce the statutes under these facts. Kerns's sixth assignment of error is thus overruled as moot.
Kerns's seventh assignment of error contends that Schmidt's failure to obtain his consent constituted negligence per se. Assuming arguendo that the facts support a finding that Schmidt breached a statutory duty owed to Kerns, thereby proximately causing him harm, the statute of limitations for bringing the action would be the same as for a "medical claim," as defined under R.C. 2305.11. Since Kerns did not timely file his action pursuant to the limitations set forth in R.C. 2305.11, his argument that Schmidt was negligent per se is not well taken. Therefore, Kerns's seventh assignment of error is overruled.
In conclusion, the trial court not only erred in determining that the relevant statutes' lack of a private cause of action for a physician's failure to obtain the husband's consent to a nonspousal artificial insemination precluded recovery for damages by a non-consenting husband, the court also erred in failing to find Kerns had stated a claim upon which relief could be granted by alleging fraud against Schmidt.
Based upon our conclusion that Kerns's was collaterally estopped from asserting his claim against Baker, we overrule Kerns's second and third assignments of error, and sustain Baker's assignment of error on cross-appeal. Kerns's first, fourth and fifth assignments of error are sustained, and his sixth and seventh assignments of error are overruled. The judgment of the trial court is affirmed in part and reversed in part, and this matter is remanded to the trial court with instructions to enter judgment in accordance with the opinion rendered herein.
Judgment affirmed in part, reversed in part and cause remanded.
PEGGY BRYANT and TYACK, JJ., concur.
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