2007-173, JOHN MALONEY, ADMINISTRATOR OF THE ESTATE OF HELEN MALONEY v. DENNIS S. BADMAN, M.D. & a.

The plaintiff, John Maloney, administrator of the estate of

Murdough on the brief, and Mr. Abbott orally), for the defendants. Sulloway & Hollis, P.L.L.C., of Concord (W. Kirk Abbott, Jr. and Sarah S.

on the brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Burns, Bryant, Cox, Rockefeller & Durkin, P.A., of Dover (John E. Durkin

JOHN MALONEY, ADMINISTRATOR OF THE ESTATE OF HELENE MALONEY

editorial errors in order that corrections may be made before the opinion goes No. 2007-173 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Carroll Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as and document his clinical decisions adequately. p. 2 physical examinations, conduct an objective assessment of her need for drugs,

should she again become racked with pain due to her Crohn’s disease. with mood regulation and that she considered suicide a possibility in the future

also admitted that, in treating the decedent, he failed to: perform proper

filled in October 2000.

deformed and hopeless. He was also notified that the decedent was struggling

admitted to prescribing medications to the decedent without office visits. He restricted his license to prescribe certain drugs. In this agreement, Badman pursuant to which the board reprimanded him and, among other things,

2000. The prescription of one of the empty bottles found in her hotel room was decedent had accelerated depression and that, because of this, Badman erred The plaintiff’s expert testified at his deposition that he believed that the

bound for two years, was in pain, exhausted, and malnourished, and felt ileostomy and bowel resection nine years earlier, had lost weight, was housespecifically, he was notified that she had become severely depressed after her

Ultimately, the board and Badman entered into a settlement agreement Following the decedent’s death, the board investigated Badman.

received prescriptions from Dr. John Patten for Percocet in June and October any medications to her in 2000. Pharmacy records show that the decedent Badman never saw or treated the decedent in a hospital, nor did he prescribe

of her Crohn’s disease and as primary care physicians. Badman was informed about the decedent’s visits with her psychiatrist; The decedent also saw several local doctors, including Badman, for treatment Additionally, the decedent received treatment from a psychiatrist. treated the major aspects of her Crohn’s disease with a specialist in Boston.

which were partially full.

2001. In the course of treating her, he prescribed Percocet and Valium. The decedent saw Badman twice in the spring of 1999 and seven times in

is a chronic intestinal illness, as well as depression and suicidal ideation. She Throughout the decedent’s life, she suffered from Crohn’s disease, which

plaintiff, and five prescription pill bottles, three of which were empty, two of room. They also found a suicide note, a check from the decedent to the to a call from the motel’s owner, the police found the decedent in her hotel decedent checked into a motel using an alias. On July 18, 2001, in response She died from an intentional overdose of Percocet. The day before she died, the Maloney, was the plaintiff’s wife. She committed suicide on July 18, 2001. The trial court’s orders recited the following: The decedent, Helene

I. Background p. 3 3

act”). “This is because the act of suicide breaks the causal connection between

responsible for the harm.” intervening act which precludes a finding that a given defendant, in fact, is

death and must have the capacity to choose effectively to do or not to do the . . . must understand the natural physical consequences of his act to produce of suicide as deliberate and intentional “implies that one who commits suicide cf. Cole v. Combined Ins. Co. of America, 125 N.H. p. 3 395, 396 (1984) (definition (suicide is “the act . . . of taking one’s own life voluntarily and intentionally”); see Webster’s Third New International Dictionary 2286 (unabridged ed. 2002)

will not lie because the act of suicide is considered a deliberate, intentional and Generally, “negligence actions seeking damages for the suicide of another

of law. (199 p. 3 3). issue of material fact, and the moving party is entitled to judgment as a matter there is no negligence.” Walls v. Oxford Management Co., 137 N.H. 653, 656 favorable to the non-movant, our review of that evidence discloses no genuine question of law. Sintros v. Hamon, 148 N.H. 478, 480 (2002). “Absent a duty, Technologies, 147 N.H. 706, 709 (2002). Whether a defendant owes a duty is a proximately caused the decedent’s suicide. See Dupont v. Aavid Thermal Badman owed the decedent a duty, breached that duty and that the breach To prevail upon his negligence claim, the plaintiff must demonstrate that

B. General Legal Principles

application of the law to the facts de novo. Id. favor, and this appeal followed. Stewart v. Bader, 154 N.H. 75, 87 (2006). We review the trial court’s

the evidence and all inferences properly drawn therefrom in the light most We will affirm a trial court’s grant of summary judgment if, considering

A. Standard of Review suicide. for her chronic pain, which contributed to her depression, and led to her II. Analysis

because he had no pre-existing duty to prevent it. The trial court ruled in his judgment on the ground that he was not liable for the decedent’s suicide proximately caused the decedent’s suicide. Badman moved for summary action against the defendants, alleging that Badman’s negligence had After the decedent died, the plaintiff brought the instant wrongful death

expert concluded that Badman provided the decedent with substandard care when he prescribed Valium to her, as this drug worsens depression. The p. 4 4

bringing about the suicide of the victim. emotional distress in his victim which was a substantial factor in torture. wronged a victim and that this intentional conduct caused severe tortfeasor, by extreme and outrageous conduct, intentionally destruction. intentional torts, the plaintiff must demonstrate that the in order for a cause of action for wrongful death by suicide to lie for

that: this exception in Mayer v. Town of Hampton, 127 N.H. 81, 87 (1985), holding it impossible for him to resist impulse caused by insanity). We adopted part of insane if delirium or insanity prevent him from realizing nature of act or makes another, actor is liable for harm done by other to himself while delirious or p. 4 493 (1965) (if actor’s negligent conduct brings about delirium or insanity of Id. at 337-38 (citations omitted); see Restatement (Second) of Torts § 455, at or emotional injury through wrongful accusation, false arrest or injury, or, in rare cases, the intentional infliction of severe mental act. Such cases typically involve the infliction of severe physical making available the actual means of an individual’s selfsuicide, or prevented the decedent from realizing the nature of his breach of what is described as a duty to refrain from knowingly proximately resulted in an uncontrollable impulse to commit uncontrollable impulse to commit suicide), and also out of a causation (the drugs or alcohol foreseeably caused a frenzy or defendant. In these cases, liability arises both by virtue of direct prohibiting the sale of certain drugs or liquor was violated by the This exception also encompasses cases in which a statute

found to have caused a mental condition in the decedent that The first exception involves cases where a tortious act is

In McLaughlin, we explained the first exception as follows:

a duty to prevent it. McLaughlin, 123 N.H. at 337. caused the suicide; under the other, liability exists because the defendant had Id. at 758. Under one exception, liability exists because the defendant actually Other jurisdictions have recognized two exceptions to this general rule.

N.H. 7 p. 5 56, 757-58 (1997) (quotation omitted). the wrongful or negligent act and the death.” Bruzga v. PMR Architects, 1 p. 4 41 5

another. Relying upon our observation in

or control necessary to prevent that suicide. illness and/or the potential for suicide, and which have the power physicians, and that our dicta in special training and expertise enabling them to detect mental parts of the first exception and the second exception as it pertains to

informed the court that they did not want the court to depart from its dicta in exception to the general rule that there is no tort liability for the suicide of The plaintiff first argues that Badman’s conduct falls within the first

1. First Exception

C. Plaintiff’s Arguments

we will assume, without deciding, that New Hampshire law recognizes the other McLaughlin. Therefore, because the parties have not asked us to do otherwise,

the second exception as it pertains to physicians, at oral argument, the parties Although we have not yet adopted the other parts of the first exception or

conduct proximately caused the prisoner’s injuries from an attempted suicide. be liable under a negligence theory, but could be liable if his or her reckless City of Keene, 137 N.H. 70, 72-73 (1993), where we held that a jailer could not conduct.”). We adopted this exception as it pertains to jailers in Murdock v. unreasonable risk of harm extends to risks arising out of the actor’s own of Torts persons or institutions such as mental hospitals, psychiatrists and, supra comment d at 119 (“The duty to protect the other against protection is under a similar duty to the other.”); actual physical custody of and control over persons; and (2) see also Restatement (Second) circumstances such as to deprive the other of his normal opportunities for institutions such as jails, hospitals and reform schools, having law to take or who voluntarily takes the custody of another under occurring. Specifically, this duty has been imposed on: (1) Restatement (Second) of Torts, supra § 314A at 118 (“One who is required by McLaughlin, 123 N.H. at 338 (quotation and citations omitted); see

potential, and fails to take measures to prevent suicide from has a duty of custodial care, is in a position to know about suicide individual. The typical defendant in such cases is someone who whom are held to have a special relationship with the suicidal matter of law, on essentially two classes of defendants, both of duty of care to prevent suicide. This duty has been imposed as a The second exception focuses on the existence of a specific

We described the second exception in McLaughlin as follows: p. 6 6

statutes he cites pertain to pharmacists, not physicians.

decedent to commit suicide) had reason to expect that the drugs (or if at all, only when the pharmacist (or seller of the instrumentality used by the making available the actual means of an individual’s self-destruction.” Runyon v. Reid, 510 P.2d 943, 949-50 (Okla. 1973). Liability may be imposed, plaintiff asserts that these prescriptions also violated federal law, the federal also out of a breach of what is described as a duty to refrain from knowingly Consummated with Drugs Furnished by Him, 58 A.L.R.3d 828, 828 (1974); see 500 mg, 540 pills” to be filled by a mail-in prescription service. Although the foreseeably caused a frenzy or uncontrollable impulse to commit suicide), and druggist’s part.” Annotation, Druggist’s Civil Liability for Suicide “Percocet 7.5-500 mg, 100 pills” to the decedent and prescribed “Percocet 7.5- and intervening proximate cause, insulating the effect of any negligence on the voluntarily ingesting the poison, with knowledge of its effect, amounts to a new . . . question have found no liability, reasoning that the act of the decedent in applies to Badman. With respect to pharmacist liability, “[m]ost of the courts considering the

which liability is imposed. Id. that our dicta in regulating the sale of narcotics by pharmacists as examples of statutes under McLaughlin, 123 N.H. at 338. We mentioned dram shop acts and acts

assume that it made all subsidiary findings necessary to support its ruling. drugs or liquor “arises both by virtue of direct causation (the drugs or alcohol destruction. According to Badman’s affidavit, on May 10, 2001, he prescribed In McLaughlin, we stated that liability where a defendant sells certain

summary judgment. argument appears in the plaintiff’s objection to the defendants’ motion for discloses no genuine issue of material fact as to whether the first exception Mayer, our review of the evidence in the light most favorable to the plaintiff

McLaughlin about the first exception survived our decision in

With respect to the merits of the plaintiff’s argument, even if we assume

See Nordic Inn Condo. Owners’ Assoc. v. Ventullo, 151 N.H. 571, 58 p. 6 6 (2004).

Although the trial court did not discuss the first exception in its order, we develop his argument sufficiently for the trial court’s review. See id. at 291-92. Badman knowingly made available the means of the decedent’s self- 290-91 (200 p. 6 6). We also disagree with the defendants that the plaintiff failed to allegedly violated RSA 318-B:9, V (2004) and that with these prescriptions, See In the Matter of Hampers & Hampers, 154 N.H. 275, applies because Badman’s May 2001 Percocet prescriptions to the decedent plaintiff did not preserve this argument for our review, we disagree. This As a preliminary matter, although the defendants contend that the

certain drugs or liquor was violated by the defendant,” he contends that it this exception “encompasses cases in which a statute prohibiting the sale of would commit suicide. p. 7 whether it was or should have been foreseeable to Badman that the decedent plaintiff, we hold that it is insufficient to raise a triable issue of fact as to commit suicide. Viewing this evidence in the light most favorable to the

suicidal. The provider noted that the decedent neither intended nor planned to four occasions during the week before she died and was not assessed to be according to records he reviewed, the decedent saw a mental health provider on

suicidal. Moreover, the plaintiff’s expert testified at his deposition that,

the decedent’s family ever expressed the view to Badman that the decedent was 7 Badman that she attempted suicide in 1987. Further, there is no evidence that suicidal ideation or plan. It is also undisputed that the decedent failed to tell

the decedent took her own life only eight days after her last contact with the if she became racked with pain, he was also told that she had no current 1268. Here, Badman treated the decedent for Crohn’s disease. In Edwards, treated the decedent for “recurring clinical depression.” Edwards, 692 A.2d at (Conn. 1997), which is distinguishable on its facts. The defendant in Edwards The plaintiff mistakenly relies upon Edwards v. Tardif, 692 A.2d 1266

risk of suicide”). with [his] brief incarceration only a few months prior to his suicide revealed no suicide, nor any mention of suicide; and a suicide screening done in connection of suicidal tendencies; there is no evidence of suicide attempts, threats of Ct. App. 2001) (suicide not foreseeable where decedent “showed no indication

2001. Although Badman was told that the decedent became depressed eight decedent expressed suicidal ideation to Badman when they had contact in May

to Badman. fact as to whether the decedent’s suicide was or should have been foreseeable

2001, two months before she committed suicide. There is no evidence that the It is undisputed that the decedent and Badman had no contact after May

light most favorable to the plaintiff, fails to raise a genuine issue of material use Percocet to commit suicide. Put another way, the evidence, viewed in the Badman knew or should have had reason to expect that the decedent would conclude that it does not raise a genuine issue of material fact as to whether Viewing the evidence in the light most favorable to the plaintiff, we

Rest. v. Dempsey, 723 So. 2d 3 p. 8 84 (Fla. Dist. Ct. App. 1998). shop laws is also predicated upon foreseeability. See Kirman Rd. Sports Pub & ammunition to commit suicide). Similarly, liability for suicide under dram evidence that it knew or should have known that decedent intended to use who sold ammunition to decedent was not liable for decedent’s suicide absent Bend of the River, 124 S.W.3d 580, 594-96 (Tenn. Ct. App. 2003) (defendant Inc., 876 P.2d 738, 740-42 (Okla. Ct. App.), cert. denied (Okla. 1994); Rains v. instrumentality) would be used to commit suicide. See Drake v. Wal-Mart, 8

who were aware of the patient’s unstable mental condition”),

individual, be it for a voluntary or involuntary admission, so that it is treating suicide where professional “has assumed the custody or control of an (Ill. App. Ct. 199 p. 8 8) (mental healthcare professional may be liable for patient’s U.S. 1007 (1989); Winger v. Franciscan Medical Center, 701 N.E.2d 813, 820

suicidal person died while under the care and custody of hospital physicians suicide only “in the limited context of hospital-patient relationships where the special relationship giving rise to a duty to exercise due care in order to prevent 956 (Cal. 19 p. 8 88) (recognizing that California Supreme Court has imposed a subsequent suicide); Nally v. Grace Com. Church of the Valley, 763 P.2d 948, lacked special relationship necessary to make psychiatrist liable for patient’s psychiatrist treated patient on out-patient basis, psychiatrist and patient personal contacts between psychiatrist and patient and, particularly, fact that medications prescribed to her. well-being,” which included her mental health, and the “precise control” over held. See King v. Smith, 539 So. 2d 262, 264 (Ala. 1989) (given minimum primary care physician, had a “precise duty to care for her overall health and 340 (quotation and brackets omitted). Courts in other jurisdictions have so the non-hospitalized patient to prevent his suicide.” McLaughlin, 123 N.H. at time of the suicide, because a psychiatrist does not have sufficient control over imposing liability . . . is only appropriate if [the] patient is hospitalized at the the case of individual psychiatrists, commentators have suggested that control necessary to prevent the decedent from committing suicide. “Even in to reveal a disputed issue of material fact as to whether Badman had the Our review of the evidence in the light most favorable to the plaintiff fails

negligence relationship, the plaintiff contends, arose because Badman, as the decedent’s the plaintiff asserts that Badman’s May 2001 prescriptions constituted decedent’s suicide because he had a special relationship to her. This the general rule of no tort liability for the suicide of another. To the extent that another. Specifically, he asserts that Badman had a duty to prevent the second exception to the general rule of no tort liability for the suicide of The plaintiff next contends that Badman’s conduct falls within the

2. Second Exception

claim that the plaintiff purports to argue on appeal. has not appealed that denial. Thus, we do not address any negligence per se to add such a claim, which the trial court appears to have denied, and that he

per se, the record shows that the plaintiff moved to amend his writ

granted summary judgment to Badman with respect to the first exception to For the above reasons, we hold that the trial court did not err when it

her last contact with Badman. defendant’s office. Id. Here, the decedent committed suicide two months after p. 9 9

BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

to the defendants’ cross-appeal. light of our decision, we need not address the parties’ arguments with respect exception to the general rule of no tort liability for the suicide of another. In not err when it granted Badman summary judgment with respect to the second Accordingly, for all of the above reasons, we hold that the trial court did

service office to prevent the suicide of their noncustodial clients). to prevent the decedent’s suicide. insufficient to create a duty on the part of counselors at a state veterans’ fact as to whether Badman had the degree of control necessary to create a duty v. Corregedore, p. 9 925 P.2d 324, 337 (Haw. 1996) (foreseeability alone is cognizable special relationship giving rise to a legal duty to prevent harm.”); in the light most favorable to the plaintiff, to create a genuine issue of material Lee the harm or knowledge of the danger, is insufficient to create a legally Edwards, 692 A.2d at 1270, with Nally, 763 P.2d at 959 (“Mere foreseeability of observe that courts in other jurisdictions are split on this issue. Compare patient sufficient to make the physician liable for the patient’s suicide. We foreseeability alone creates a special relationship between a physician and not resolve in this appeal whether in another case we might hold that Because we are assuming that our dicta in McLaughlin controls, we need

two months before she committed suicide. This evidence is insufficient, viewed on an out-patient basis and that his last contact with her was in May 2001, to prevent suicide). Here, it is undisputed that Badman treated the decedent decedent in out-patient clinic lacked degree of control required to impose duty 712 N.E.2d 825 (Ill. 1 p. 9 999); Runyon, 510 P.2d at 947, 950 (physicians treating the individual and has knowledge of his suicidal tendencies”), appeal denied,