A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his or her personal representative if he or she is also deceased, if the former might have maintained an action, had he or she lived, against the latter, or his or her representative, for an injury for the same act or omission. The action must be commenced within two (2) years. B. The damages recoverable in actions for wrongful death as provided in this section shall include the following: 1. Medical and burial expenses, which shall be distributed to the person or governmental agency as defined in Section 5051.1 of Title 63 of the Oklahoma Statutes who paid these expenses, or to the decedent's estate if paid by the estate. The provisions of this paragraph shall not apply to the cost of an abortion in actions maintained pursuant to subsection F of this section; 2. The loss of consortium and the grief of the surviving spouse, which shall be distributed to the surviving spouse; 3. The mental pain and anguish suffered by the decedent, which shall be distributed to the surviving spouse and children, if any, or next of kin in the same proportion as personal property of the decedent. For the purposes of actions maintained pursuant to subsection F of this section, "next of kin" as used in this paragraph shall mean the parent or grandparent who maintained the action as provided for in paragraph 3 of subsection F of this section; 4. The pecuniary loss to the survivors based upon properly admissible evidence with regard thereto including, but not limited to, the age, occupation, earning capacity, health habits, and probable duration of the decedent's life, which must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin, and shall be distributed to them according to their pecuniary loss. For the purposes of actions maintained pursuant to subsection F of this section, "next of kin" as used in this paragraph shall mean the parent or grandparent who maintained the action as provided for in paragraph 3 of subsection F of this section; and 5. The grief and loss of companionship of the children and parents of the decedent, which shall be distributed to them according to their grief and loss of companionship. C. In proper cases, as provided by Section 9.1 of Title 23 of the Oklahoma Statutes, punitive or exemplary damages may also be recovered against the person proximately causing the wrongful death or the person's representative if such person is deceased. Such damages, if recovered, shall be distributed to the surviving spouse and children, if any, or next of kin in the same proportion as personal property of the decedent. For the purposes of actions maintained pursuant to subsection F of this section, "next of kin" as used in this paragraph shall mean the parent or grandparent who maintained the action as provided for in paragraph 3 of subsection F of this section. D. Where the recovery is to be distributed according to a person's pecuniary loss or loss of companionship, the judge shall determine the proper division. E. The above-mentioned distributions shall be made after the payment of legal expenses and costs of the action. F. 1. The provisions of this section shall also be available for the death of an unborn person as defined in Section 1-730 of Title 63 of the Oklahoma Statutes. 2. The provisions of this subsection shall apply to acts which cause the death of an unborn person in utero if: a. the physician who performed the abortion or the referring physician fails to obtain and document the voluntary and informed consent of the pregnant woman pursuant to Section 1-738.2 of Title 63 of the Oklahoma Statutes, b. the pregnant woman withdraws her consent to the abortion prior to performance of the abortion, c. the pregnant woman undergoes the abortion due to coercion from a third party, d. the physician fails to obtain and document proof of age demonstrating that the pregnant woman is not a minor, or, in the case of a minor, fails to obtain: (1) parental consent to the abortion pursuant to Section 1-740.2 of Title 63 of the Oklahoma Statutes, (2) proof that the pregnant woman, although a minor, is emancipated, or (3) judicial authorization of the abortion without parental notification pursuant to Section 1-740.3 of Title 63 of the Oklahoma Statutes, e. the physician who performed the abortion causes the woman physical or psychological harm, the possibility of which she did not foresee or was not informed of at the time of her consent, f. the physician who performed the abortion fails to screen the pregnant woman and document such screening for risk factors associated with a heightened risk of adverse consequences from abortion which a reasonably prudent physician would screen for, g. the physician fails to screen the pregnant woman and document such screening for physical or psychological impairment of judgment due to factors including, but not limited to, drugs, alcohol, illness or fatigue, h. the physician fraudulently induces the pregnant woman to obtain the abortion or gives misleading or false information in response to a pregnant woman's inquiry, or i. there exist any other circumstances which violate state law. The provisions of this paragraph shall not be construed to apply to cases in which a physician licensed to practice medicine in this state attempts, in a reasonably prudent manner, to prevent the death of an unborn person or a pregnant woman. 3. A parent or grandparent of the deceased unborn person is entitled to maintain an action against the physician who caused the death of an unborn person under the conditions provided by subparagraphs a through i of paragraph 2 of this subsection; provided, however, the parent or grandparent may not maintain such action if the parent or grandparent coerced the mother of the unborn person to abort the unborn person. 4. Liability for wrongful death by the physician under this section shall not be waived by the pregnant woman prior to performance of the abortion. A physician shall not request, orally, on a written form or in any other manner, that the pregnant woman waive the liability of the physician for wrongful death related to the abortion as a condition of performing an abortion. 5. Under no circumstances shall the mother of the unborn person be found liable for causing the death of the unborn person unless the mother has committed a crime that caused the death of the unborn person. R.L. 1910, § 5281. Amended by Laws 1925, c. 125, p. 177, § 1; Laws 1943, p. 35, § 1, emerg. eff. April 13, 1943; Laws 1978, c. 106, § 1, eff. Oct. 1, 1978; Laws 1979, c. 235, § 1, eff. Oct. 1, 1979;
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