Physician Not Liable For Suicide Death Of Patient
From Overdose Of Prescription Medication
Due To Lack Of Foreseeability And Control
Estate of Maloney v. Dennis S. Badman, M.D., No. 2007-173 (December 20, 2007) 

Facts: The decendent committed suicide as a result of an intentional overdose of Percocet in July of 2001. Throughout her life the decedent had suffered from Crohn's disease, depression and suicidal ideation. She was treated by several doctors, including the defendant, Dr. Badman.

Dr. Badman had seen the decedent twice in 1999 and seven times in 2001. In the course of treating her he had prescribed Percocet and Valium, at times without first assessing her need for drugs through office visits. The decedent had also received prescriptions for Percocet from another physician. The decedent had been treated by a psychiatrist who notified Dr. Badman that she was struggling with mood regulation and that she considered suicide a possibility in the future if the symptoms of her Crohn's disease should worsen. However, Dr. Badman was not informed that the decedent had attempted suicide in 1987, nor was he informed by the decedent's family that she was suicidal. Dr. Badman had no contact with the decedent within the two months prior to her suicide.

The decedent's spouse filed a medical negligence action against Dr. Badman. The trial court granted summary judgment in favor of Dr. Badman, ruling that Dr. Badman did not have a duty to prevent the decedent's suicide.

Held:   Affirmed.

Generally, negligence actions for the suicide of another will not succeed because of the intentional nature of the act which precludes a finding that a defendant is responsible for the harm. However, in McLaughlin v. Sullivan, 123 N.H. 335 (1983) the Court had noted in dicta that other jurisdictions have recognized two exceptions to this general rule: 1) when the defendant's tortious act causes a mental condition that results in an uncontrollable impulse by the decedent to commit suicide, or where the defendant violates a statute prohibiting the sale of drugs or liquor thereby causing an uncontrollable impulse to commit suicide; and 2) when the defendant has a specific duty of care to prevent suicide, such as when the defendant has a duty of custodial care, is in a position to know about the suicidal potential, and fails to take measure to preven the suicide from occurring.

In Mayer v. Town of Hampton, 127 N.H. 81 (1985), the Court adopted part of the first exception, holding that a cause of action for wrongful death by suicide requires the plaintiff to demonstrate that "the tortfeasor, by extreme and outrageous conduct, intentionally wronged a victim and that this intentional conduct caused severe emotional distress in his victim which was a substantial factor in bringing about the suicide of the victim."

Explaining that New Hampshire has not yet adopted the second part of the first exception, or the second exception, as they pertain to physicians, the Court assumed without deciding that these exceptions apply because the parties asked the Court to follow its dicta in McLaughlin.

The Court held that the first exception did not apply because there was no evidence that Dr. Badman knew or should have had reason to expect that the decedent would use Percocet to commit suicide.

The Court also held that the second explanation did not apply, ruling that Dr. Badman did not have the control necessary to prevent the decedent from committing suicide. The Court observed that most jurisdictions find a duty only when the decedent is hospitalized at the time of the suicide. Dr. Badman treated the decedent on an out-patient basis and had not had any contact with her during the two months prior to her death and, therefore, lacked the requisite control.

Noting that other jurisdictions are split as to whether foreseeability alone creates a special relationship between a physician and patient sufficient to hold the physician liable for a patient's suicide, the Court stated that it need not address the question in this case.

Regards,

Mike Wallenius

603-634-4300
mwallenius@gss-lawyers.com