34-23A-16.2. Abortion--Child born alive--Civil and disciplinary action.

In addition to the damages recoverable under §§ 34-23A-60 and 34-23A-61, a mother upon whom an abortion is performed or attempted to be performed, whose child is born alive, may obtain money damages for any psychological injury the mother sustained where the physician's negligence in caring for the child following birth was a significant contributing factor in causing her psychological injury.

The child born alive has a cause of action against the physician, the physician's agents, and the abortion facility, for any physical or psychological injury, or both, for any injuries sustained during and as a result of the abortion, and for any additional physical or psychological injury, or both, where the negligence of the physician, the physician's agents, and the abortion facility, in the medical care following birth, was a significant contributing factor.

The money damages for any claim brought pursuant to this section must include all traditionally recognized compensatory and punitive damages recoverable under the laws of this state and punitive damages for intentional disregard for the standard imposed by § 34-23A-16.1 and for reasonable attorney's fees.

A physician who fails to meet the requirements of § 34-23A-16.1 is liable to the state for a civil penalty of ten thousand dollars for each offense. The attorney general may bring an action to recover that civil penalty and, if successful, shall be awarded reasonable attorney's fees.

A licensed physician, licensed agent, and licensed abortion facility who or that fails to comply with the requirements of § 34-23A-16.1, must be reported to the South Dakota Board of Medical and Osteopathic Examiners and that may form the grounds for sanctions, including suspension of the physician's license and, where appropriate, revocation of such license.

Any person having knowledge of a failure to meet the requirements of § 34-23A-16.1 may report the failure to the attorney general and, upon request, that person's identity must remain confidential.

Nothing in § 34-23A-16.1 may be construed to hold the mother of the child born alive criminally or civilly liable for consenting to an abortion, or for the acts of the physician, the physician's agents, or the abortion facility for violation of § 34-23A-16.1 following the child being born alive.

Source: SL 2021, ch 150, § 2.