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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Carroll No. 2007-173 JOHN MALONEY, ADMINISTRATOR OF THE ESTATE OF HELENE MALONEY v. DENNIS S. BADMAN, M.D. & a. Argued: November 13, 2007 Opinion Issued: December 20, 2007 Burns, Bryant, Cox, Rockefeller & Durkin, P.A., of Dover (John E. Durkin on the brief and orally), for the plaintiff. Sulloway & Hollis, P.L.L.C., of Concord (W. Kirk Abbott, Jr. and Sarah S. Murdough on the brief, and Mr. Abbott orally), for the defendants. DALIANIS, J. The plaintiff, John Maloney, administrator of the estate of Helene Maloney, appeals the order of the Superior Court (O'Neill, J.) granting summary judgment to defendant Dennis S. Badman, M.D. on the plaintiff's negligence action for wrongful death. The defendants, Badman and his business, Wakefield Family Medicine, cross-appeal from the trial court's finding that Badman rendered substandard care and its ruling that he is judicially estopped by statements in his settlement agreement with the New Hampshire Board of Medicine (board). We affirm.

I.

Background

The trial court's orders recited the following: The decedent, Helene Maloney, was the plaintiff's wife. She committed suicide on July 18, 2001. She died from an intentional overdose of Percocet. The day before she died, the decedent checked into a motel using an alias. On July 18, 2001, in response to a call from the motel's owner, the police found the decedent in her hotel room. They also found a suicide note, a check from the decedent to the plaintiff, and five prescription pill bottles, three of which were empty, two of which were partially full. Throughout the decedent's life, she suffered from Crohn's disease, which is a chronic intestinal illness, as well as depression and suicidal ideation. She treated the major aspects of her Crohn's disease with a specialist in Boston. The decedent also saw several local doctors, including Badman, for treatment of her Crohn's disease and as primary care physicians. The decedent saw Badman twice in the spring of 1999 and seven times in 2001. In the course of treating her, he prescribed Percocet and Valium. Badman never saw or treated the decedent in a hospital, nor did he prescribe any medications to her in 2000. Pharmacy records show that the decedent received prescriptions from Dr. John Patten for Percocet in June and October 2000. The prescription of one of the empty bottles found in her hotel room was filled in October 2000. Additionally, the decedent received treatment from a psychiatrist. Badman was informed about the decedent's visits with her psychiatrist; specifically, he was notified that she had become severely depressed after her ileostomy and bowel resection nine years earlier, had lost weight, was housebound for two years, was in pain, exhausted, and malnourished, and felt deformed and hopeless. He was also notified that the decedent was struggling with mood regulation and that she considered suicide a possibility in the future should she again become racked with pain due to her Crohn's disease. Following the decedent's death, the board investigated Badman. Ultimately, the board and Badman entered into a settlement agreement pursuant to which the board reprimanded him and, among other things, restricted his license to prescribe certain drugs. In this agreement, Badman admitted to prescribing medications to the decedent without office visits. He also admitted that, in treating the decedent, he failed to: perform proper physical examinations, conduct an objective assessment of her need for drugs, and document his clinical decisions adequately. The plaintiff's expert testified at his deposition that he believed that the decedent had accelerated depression and that, because of this, Badman erred

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when he prescribed Valium to her, as this drug worsens depression. The expert concluded that Badman provided the decedent with substandard care for her chronic pain, which contributed to her depression, and led to her suicide. After the decedent died, the plaintiff brought the instant wrongful death action against the defendants, alleging that Badman's negligence had proximately caused the decedent's suicide. Badman moved for summary judgment on the ground that he was not liable for the decedent's suicide because he had no pre-existing duty to prevent it. The trial court ruled in his favor, and this appeal followed. II. Analysis A. Standard of Review

We will affirm a trial court's grant of summary judgment if, considering the evidence and all inferences properly drawn therefrom in the light most favorable to the non-movant, our review of that evidence discloses no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Stewart v. Bader, 154 N.H. 75, 87 (2006). We review the trial court's application of the law to the facts de novo. Id. B. General Legal Principles

To prevail upon his negligence claim, the plaintiff must demonstrate that Badman owed the decedent a duty, breached that duty and that the breach proximately caused the decedent's suicide. See Dupont v. Aavid Thermal Technologies, 147 N.H. 706, 709 (2002). Whether a defendant owes a duty is a question of law. Sintros v. Hamon, 148 N.H. 478, 480 (2002). "Absent a duty, there is no negligence." Walls v. Oxford Management Co., 137 N.H. 653, 656 (1993). Generally, "negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered a deliberate, intentional and intervening act which precludes a finding that a given defendant, in fact, is responsible for the harm." McLaughlin v. Sullivan, 123 N.H. 335, 337 (1983); see Webster's Third New International Dictionary 2286 (unabridged ed. 2002) (suicide is "the act . . . of taking one's own life voluntarily and intentionally"); cf. Cole v. Combined Ins. Co. of America, 125 N.H. 395, 396 (1984) (definition of suicide as deliberate and intentional "implies that one who commits suicide . . . must understand the natural physical consequences of his act to produce death and must have the capacity to choose effectively to do or not to do the act"). "This is because the act of suicide breaks the causal connection between

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the wrongful or negligent act and the death." Bruzga v. PMR Architects, 141 N.H. 756, 757-58 (1997) (quotation omitted). Other jurisdictions have recognized two exceptions to this general rule. Id. at 758. Under one exception, liability exists because the defendant actually caused the suicide; under the other, liability exists because the defendant had a duty to prevent it. McLaughlin, 123 N.H. at 337. In McLaughlin, we explained the first exception as follows: The first exception involves cases where a tortious act is found to have caused a mental condition in the decedent that proximately resulted in an uncontrollable impulse to commit suicide, or prevented the decedent from realizing the nature of his act. Such cases typically involve the infliction of severe physical injury, or, in rare cases, the intentional infliction of severe mental or emotional injury through wrongful accusation, false arrest or torture. This exception also encompasses cases in which a statute prohibiting the sale of certain drugs or liquor was violated by the defendant. In these cases, liability arises both by virtue of direct causation (the drugs or alcohol foreseeably caused a frenzy or uncontrollable impulse to commit suicide), and also out of a breach of what is described as a duty to refrain from knowingly making available the actual means of an individual's selfdestruction. Id. at 337-38 (citations omitted); see Restatement (Second) of Torts

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