Barbara O'Bannon v. Odyssey House, et al.

Oklahoma City, OK - Barbara O'Bannon, as the Personal Representative of the Estate of John O'Bannon, deceased, sued Odyssey House, Odyssey Healthcare of Oklahoma, Inc., Odyssey Healthcare, Inc. Odyssey Healthcare GP, LLC, Integris Health, Inc., Hospice of Oklahoma County, Inc., James Blalock, M.D. and Waddah Nadim Nassary, M.D. on a wrongful death negligence theory under 12 O.S. 1053. Plaintiff claimed that John O'Bannon died from over medication with murphine while under the care of the Defendants and as a direct result of the defendants' failure to exercise due care in the care of Mr. O'Bannon.



Title 12 O.S. Section 1053 provides:









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: 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 loss of consortium and the grief of the surviving spouse, which shall be distributed to the surviving spouse.



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.



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.



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.



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 child as defined in Section 1-730 of Title 63 of the Oklahoma Statutes.



2. The provisions of this subsection shall not apply to:



a. acts which cause the death of an unborn child if those acts were committed during a legal abortion to which the pregnant woman consented, or



b. acts which are committed pursuant to the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment.



3. Under no circumstances shall the mother of the unborn child be found liable for causing the death of the unborn child unless the mother has committed a crime that caused the death of the unborn child.



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Oklahoma Court of Criminal Appeals Cases

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1988 OK CR 134, 758 P.2d 826, STATE v. HARBERT Cited

1994 OK CR 3, 868 P.2d 730, HUGHES v. STATE Discussed

Oklahoma Court of Civil Appeals Cases

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1990 OK CIV APP 96, 800 P.2d 1086, 61 OBJ 3229, Estate of Bearden, Matter of Discussed

1991 OK CIV APP 121, 830 P.2d 1393, Guyer v. Hugo Pub. Co. Cited

1991 OK CIV APP 131, 823 P.2d 953, 63 OBJ 395, White v. Equity Fire & Cas. Co. Discussed

1992 OK CIV APP 177, 852 P.2d 783, 64 OBJ 1772, Weavel v. U.S. Fidelity & Guar. Co. Discussed

1993 OK CIV APP 3, 848 P.2d 51, 64 OBJ 676, Estate of Lovely, Matter of Discussed at Length

1993 OK CIV APP 4, 848 P.2d 54, 64 OBJ 688, Weavel v. U.S. Fidelity & Guar. Co. Discussed

1993 OK CIV APP 145, 859 P.2d 1140, 64 OBJ 2982, Esther v. Wiemer Cited

1994 OK CIV APP 171, 895 P.2d 731, 66 OBJ 1695, Weeks v. Cessna Aircraft Co. Discussed at Length

1995 OK CIV APP 18, 900 P.2d 1005, 66 OBJ 2178, Superior Supply Co., Inc. v. Torres Cited

1995 OK CIV APP 113, 904 P.2d 159, 66 OBJ 3331, Forbes v. Shelter Mut. Ins. Co. Discussed

1995 OK CIV APP 118, 910 P.2d 1099, 67 OBJ 554, Beal v. McCann Discussed

2005 OK CIV APP 14, 109 P.3d 359, SOCIA v. TRADITIONS, INC. Cited

2005 OK CIV APP 63, 120 P.3d 872, BROADWAY v. PEAK MEDICAL OKLAHOMA NO. 5 Discussed

2006 OK CIV APP 148, 149 P.3d 1099, FUCHS v. FLEETWOOD HOMES OF TEXAS Cited

2009 OK CIV APP 41, 210 P.3d 877, WHITAKER v. HILL NURSING HOME, INC. Cited

1978 OK CIV APP 23, 593 P.2d 104, CARTWRIGHT v. ATLAS CHEMICAL INDUSTRIES Cited

1980 OK CIV APP 2, 606 P.2d 612, Kimberly v. DeWitt Discussed

1996 OK CIV APP 93, 934 P.2d 1104, 68 OBJ 1020, NELSON v. FOUR SEASONS NURSING CENTER Cited

1982 OK CIV APP 40, 681 P.2d 1121, Redwine v. Baptist General Convention of State of Okl. Discussed

1983 OK CIV APP 16, 666 P.2d 786, Gleason v. City of Oklahoma City Discussed

1984 OK CIV APP 5, 677 P.2d 668, Moon v. Ellis Discussed at Length

Oklahoma Supreme Court Cases

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1986 OK 36, 721 P.2d 412, 57 OBJ 1553, Hamilton By and Through Hamilton v. Vaden Discussed at Length

1986 OK 52, 742 P.2d 1077, 57 OBJ 1886, Roberts v. South Oklahoma City Hosp. Trust Discussed at Length

1987 OK 69, 741 P.2d 467, 58 OBJ 2229, McKellips v. Saint Francis Hosp., Inc. Cited

1990 OK 47, 792 P.2d 60, 61 OBJ 1330, Fenwick v. Oklahoma State Penitentiary Cited

1990 OK 136, 804 P.2d 1131, 62 OBJ 53, Williams v. Hook Discussed at Length

1992 OK 114, 836 P.2d 1298, 63 OBJ 2142, Riley v. Brown and Root, Inc. Discussed at Length

1993 OK 6, 847 P.2d 342, 64 OBJ 420, Graham v. Keuchel Cited

1994 OK 32, 897 P.2d 246, 65 OBJ 1183, State ex rel. Oklahoma Bar Assn. v. Watson Discussed

1994 OK 79, 918 P.2d 1363, 65 OBJ 2222, Ouellette v. State Farm Mut. Auto. Ins. Co. Discussed at Length

1997 OK 58, 939 P.2d 1138, 68 OBJ 1645, Currens v. Hampton Cited

1996 OK 141, 916 P.2d 241, 67 OBJ 1181, KRASZEWSKI v. BAPTIST MEDICAL CENTER OF OKLAHOMA, INC. Cited

1996 OK 142, 916 P.2d 1369, 67 OBJ 707, NELSON v. POLLAY Cited

1952 OK 4, 239 P.2d 769, 205 Okla 594, GOCHENOUR v. ST. LOUIS-SAN FRANCISCO RY. CO. Cited

1952 OK 44, 239 P.2d 759, 206 Okla 19, FENTON v. SINCLAIR REFINING CO. Cited

1952 OK 208, 245 P.2d 1142, 206 Okla 636, MID-CONTINENT PETROLEUM CORP. v. MULLEN Discussed

1952 OK 209, 245 P.2d 1134, 206 Okla 638, CAPITOL STEEL & IRON CO. v. FULLER Discussed at Length

1954 OK 122, 269 P.2d 977, EARLEY v. STATE INDUSTRIAL COMMISSION Discussed

1954 OK 184, 273 P.2d 865, COOK v. KNOX Discussed at Length

1954 OK 224, 277 P.2d 117, CROSSETT v. ANDREWS Discussed

1960 OK 163, 354 P.2d 211, ROBBERSON STEEL COMPANY v. STATE INDUSTRIAL COURT Cited

1961 OK 260, 366 P.2d 767, BOSWELL v. NOLAN Cited

1963 OK 92, 383 P.2d 203, PARKHILL TRUCK COMPANY v. ROW Cited

1963 OK 250, 386 P.2d 780, ROBERTS v. MERRILL Discussed at Length

1964 OK 215, 395 P.2d 809, HENRIE v. GRIFFITH Cited

1965 OK 134, 406 P.2d 488, WALLACE v. STATE INDUSTRIAL COURT Discussed

1965 OK 152, 406 P.2d 493, PARKER v. NATIONAL ZINC COMPANY Discussed at Length

1965 OK 159, 408 P.2d 281, LANE v. HUGHES Cited

1965 OK 181, 408 P.2d 288, H.L. MANESS TRUCK LINES v. LEMMONS Discussed at Length

1965 OK 182, 408 P.2d 322, CORVIN v. STATE INDUSTRIAL COURT Cited

1965 OK 171, 409 P.2d 9, OSMOND v. PAUL R. MOODY CONSTRUCTION CO. Cited

1967 OK 18, 424 P.2d 16, PADILLOW v. ELROD Cited

1967 OK 10, 424 P.2d 35, HILL v. GRAHAM Discussed

1967 OK 12, 425 P.2d 965, VIERSEN & COCHRAN DRILLING COMPANY v. FORD Cited

1967 OK 61, 426 P.2d 675, FINEFROCK v. RICE Cited

1967 OK 70, 426 P.2d 681, HALE v. HALE Discussed at Length

1967 OK 223, 434 P.2d 902, STEWART v. HARRIS Discussed

1967 OK 221, 441 P.2d 1020, DEATHERAGE v. PHIPPS Cited

1970 OK 22, 465 P.2d 431, ROGERS v. WORTHAN Discussed

1971 OK 83, 488 P.2d 1250, KARRIMAN v. ORTHOPEDIC CLINIC Cited

1972 OK 74, 498 P.2d 1384, WORKMAN v. WORKMAN Cited

1972 OK 146, 503 P.2d 871, HAWS v. LUETHJE Discussed

1974 OK 136, 528 P.2d 313, INDEPENDENT SCHOOL DISTRICT NO. 89 v. McREYNOLDS Discussed

2003 OK 47, 73 P.3d 860, ELLIS v. GURICH Discussed

2005 OK 73, 123 P.3d 21, MURG, JR. v. BARNSDALL NURSING HOME Discussed

2005 OK 74, 123 P.3d 11, MURG, JR. v. BARNSDALL NURSING HOME Discussed

1996 OK 26, 912 P.2d 852, 67 OBJ 803, Roach v. Jimmy D. Enterprises, Ltd. Discussed at Length

1996 OK 80, 921 P.2d 350, 67 OBJ 2308, Hoyt v. Paul R. Miller, M.D., Inc. Cited

2008 OK 26, 183 P.3d 1001, PINO v. UNITED STATE OF AMERICA Cited

2011 OK 104, 273 P.3d 31, WEST v. BOARD OF COUNTY COMMISSIONERS OF PAWNEE COUNTY Cited

1976 OK 64, 550 P.2d 924, EVANS v. OLSON Discussed

1976 OK 45, 550 P.2d 935, LAKE v. LIETCH Cited

2014 OK 80, 336 P.3d 468, BOLER v. SECURITY HEALTH CARE, L.L.C. Discussed at Length

1977 OK 164, 569 P.2d 974, THOMAS v. CUMBERLAND OPERATING CO. Discussed at Length

2016 OK 40, PIERSON v. JOPLIN Cited

1980 OK 161, 619 P.2d 608, Abel v. Tisdale Cited

1980 OK 180, 621 P.2d 1148, Earnest, Inc. v. LeGrand Discussed

1999 OK 98, 996 P.2d 438, 70 OBJ 3640, Nealis v. Baird Cited

2000 OK 5, 995 P.2d 1141, 71 OBJ 398, Slagell v. Slagell Discussed

1951 OK 381, 240 P.2d 766, 205 Okla. 571, NATIONAL VALVE & MFG. CO. v. WRIGHT Discussed

1950 OK 210, 227 P.2d 404, 204 Okla. 93, STANOLIND OIL & GAS CO. v. JAMISON Cited

1949 OK 170, 211 P.2d 512, 202 Okla. 170, LANDRY v. ACME FLOUR MILLS CO. Cited

1983 OK 10, 658 P.2d 1147, Clark v. Jones Discussed

1983 OK 55, 679 P.2d 1293, Redwine v. Baptist Medical Center of Oklahoma, Inc. Discussed at Length

1983 OK 61, 664 P.2d 1026, Gaither By and Through Chalfin v. City of Tulsa Discussed at Length

1983 OK 74, 665 P.2d 1183, Rios v. Nicor Drilling Co. Discussed at Length

1985 OK 7, 697 P.2d 519, Webb v. Dayton Tire and Rubber Co. Cited

1985 OK 16, 697 P.2d 525, Hughes Drilling Co. v. Crawford Discussed at Length

1985 OK 22, 697 P.2d 539, Hammons v. Muskogee Medical Center Authority Discussed

University of Oklahoma Law Review

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54 Okla. L. Rev. 859, NOTE: Torts: Nealis v. Baird: The Oklahoma Supreme Court Extends Fetal Rights in Wrongful Death Suits but Leaves Important Questions Unanswered

The Plaintiff settled with Hospice of Oklahoma County, Inc. Integris Health, Inc., Odyssey Healthcare, GP, LLC, Odyseey Healthcare, Inc. for undisclosed sums and dismissed without prejudice ast to Waddah Nadim Nassary, M.D.



SWINTON: CASE COMES ON FOR DAY THREE OF JURY TRIAL. ALL JURORS PRESENT. BOTH SIDES PRESENT AND ANNOUNCE READY. PLAINTIFF AND DEFENDANT GIVE CLOSING STATEMENTS. JURY IS GIVEN INSTRUCTIONS AND RETIRES TO DELIBERATE. JURY RETURNS WITH A VERDICT FOR THE DEFENDANT WHICH IS READ IN OPEN COURT ON THE RECORD.

THE JURY IS THANKED AND RELEASED. COURT REPORTER CYNTHIA ADAMS PRESENT