Does a Plaintiff’s Suicide Bar His or Her Estate from Recovering Damages in a Medical Malpractice Case?

By: Jared R. Green and Elie A. Maalouf¹

1. Introduction  

In a recent medical malpractice case, the defendant moved for summary  judgement, arguing that the plaintiff’s estate could not recover tort damages  because the plaintiff’s death by suicide was unforeseeable to the defendant  medical provider. Although this matter resolved at mediation before the court  ruled on the issue, it is our view that New Hampshire law does not prohibit pre-death or post-death damages where the decedent’s suicide was causally  related to the harm that resulted from the defendant’s negligent conduct. This  article will review the New Hampshire law on the subject, and it will discuss  our objection to the defendant’s motion.

1. Background 

The plaintiff’s decedent in this action took his own life because the  defendant’s medical negligence made his continued existence unbearable.  Shortly after learning that the pain, disfigurement, inability to eat solid  foods, and inability to communicate orally, which we alleged resulted from  the defendant’s egregious errors, were likely to be permanent, the decedent lost all hope and killed himself. There was no evidence in the record  suggesting any other reason for the decedent’s suicide. The defendant  moved for summary judgment arguing that the plaintiff’s claims were  barred as a matter of law because the suicide was unforeseeable and thus  broke the chain of causation between the defendant’s malpractice and the  decedent’s death.

III. Pre-Death Damages New Hampshire Law 

As an initial matter, we argued that even if the defendant’s legal  argument was true, the plaintiff had stated valid claims for his months of  pre-death pain and suffering, loss of enjoyment of life, medical expenses,  and lost wages. We contended that the defendant was not entitled to  summary judgment because the plaintiff had established a valid medical  negligence claim with a variety of recognized damages, which included, but  were not limited to, the harm the decedent’s estate experienced when he  died. For example, as a result of the defendant’s failure to provide  reasonable medical care, the decedent experienced physical pain, emotional  distress, disfigurement, and loss of enjoyment of life, and he incurred  medical expenses and lost wages, all before he died. Since New

Hampshire’s wrongful death statute permits a decedent’s estate to  recover damages for his pre-death losses, even if his subsequent death was  unrelated to the negligently-caused injury, we argued there was no basis for  entering summary judgment terminating this case. ²

Since it was undisputed that the defendant medical provider was the  plaintiff’s treating physician at the time of the injury, the resulting physician patient relationship created a legal duty to exercise reasonable care in treating  the decedent.³ The plaintiff had disclosed expert testimony demonstrating that  the defendant failed to comply with his duty and, as a result, the decedent experienced a variety of painful, disfiguring, and debilitating complications,  which ultimately led him to take his own life. Thus, even if the court accepted the defendant’s arguments regarding the availability of post-death damages,  there was no reason why the plaintiff should be denied recovery for the  decedent’s pre-death damages.

1. Post-Death Damages

We also argued that the plaintiff’s post-death damages were not  barred by current New Hampshire law. First, we pointed out that the  defense relied entirely on dicta from earlier cases expressing a “general  rule” that suicide is unforeseeable. In McLaughlin v. Sullivan,⁴ our Supreme  Court stated: “[a]s a general rule, 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.”⁵ But the court  immediately added, “[i]n recent years, however, tort actions seeking damages  for the suicide of another have been recognized . . . where the defendant is  found to have actually caused the suicide . . .”⁶ The court explained that, as of  1983, suicide claims had been allowed “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.”⁷ Just two years later, the court backed off the  “general rule” it referenced in McLaughlin, when it wrote, “Early cases denied  recovery for wrongful death by suicide on the basis that suicide, apparently as  a matter of law, is an intervening, independent agency which breaks the causal  connection between the wrongful or negligent act and the death.”⁸

We contended that the dicta relied upon by the defense was  inapplicable here because the plaintiff’s suicide was caused by the  defendant’s medical negligence, a recognized exception to the “general  rule,” and it was foreseeable to the defendant, when he treated the plaintiff,  that, if he failed to comply with the applicable standard of care, his patient  may experience the types of physical and psychological harm that have

been shown to cause suicidal behavior. In fact, an article published a few  years earlier in the official journal of the defendant’s specialty association  warned physicians like the defendant of that very risk. Thus, we argued  that this case is a perfect example of why the dicta relied upon by the  defense has been extensively criticized, rejected by other courts, and, most  importantly, contradicted by our Supreme Court’s most recent suicide  cases.⁹

We explained that rather than being barred as a matter of law, the  plaintiff’s claims for post-death damages raise a garden variety causation  issue, which New Hampshire law emphatically leaves to the jury. “In a medical negligence action, the plaintiff has the burden of proving: (1) the standard of reasonable professional practice in the medical care provider’s profession or specialty; (2) the medical care provider failed to act in accordance with such standard; and (3) as a proximate result thereof, the injured person suffered injuries, which would not otherwise have occurred.”¹⁰ The third prong, which was at issue here, “reflects the plaintiffs’ burden at common law to produce sufficient evidence that [the medical care provider’s] negligence proximately caused the patient’s injury.”¹¹

“The concept of proximate cause includes both the cause-in-fact and the  legal cause of injury.”¹² The inquiry focuses on whether the defendant’s negligence caused or contributed to cause the harm, “not on whether the defendant’s negligence was the sole cause or the proximate cause . . .”¹³ “Conduct is the cause-in-fact of an injury if the injury would not have occurred  without that conduct,”¹⁴ and conduct is a legal cause of harm if the actor’s conduct is a substantial factor in bringing about the harm.¹⁵ “The law in this  State is that causation is an issue of fact. The weighing of substantive  evidence is the very essence of the jury’s function. Consequently, the trial judge has been granted little discretion to withdraw questions of substantive fact from the jury’s consideration. . . .”¹⁶ Our Supreme Court has reiterated this point many times.¹⁷

In our case, we highlighted the abundant evidence in the record to establish that the defendant’s medical negligence was both a cause-in-fact and a legal cause of the plaintiff’s suicide. Since the defense did not point out,  much less conclusively establish, the presence of some unrelated stressor or  traumatic event that occurred between the defendant’s negligence and the  plaintiff’s suicide to support an alternative explanation for the plaintiff’s death, we argued that the chain remained unbroken and the defendant’s motion  should be denied.

1. Conclusion  

New Hampshire’s tort system is in place to serve two primary goals: to  deter unsafe behavior and to make an innocent victim who has been  harmed by unsafe conduct whole.¹⁸ Wrongful death damages serve the tort  system’s compensatory purpose by “address[ing] the injury to the person and  to the estate of the deceased.”¹⁹ Damages available in a wrongful death action  therefore restore the person wronged as nearly as possible to the position he  would have been in if the wrong had not been committed.²⁰ Under New  Hampshire law, where, as here, the defendant owes an acknowledged duty of  care to avoid harming someone, the question whether the defendant is  responsible for post-death damages, such as loss of enjoyment of life from  death through the decedent’s normal life expectancy, lost earning capacity for  the decedent’s work life expectancy, and funeral expenses, turns on whether or  not the decedent’s death was causally related to the harm that resulted from  the defendant’s unsafe conduct. Allowing a plaintiff’s estate to recover post  death damages where the plaintiff’s suicide was caused by the defendant’s  negligence is consistent with New Hampshire law and it satisfies the goals of  our state’s tort system.

¹ Jared Green and Elie Maalouf are attorneys at Abramson, Brown & Dugan in Manchester,  New Hampshire. Their firm’s practice focuses on representing plaintiffs in medical malpractice  and personal injury litigation.

Jared started working with Abramson, Brown & Dugan in 1992 while still attending law school.  In the subsequent thirty years, he has represented injured people and their families in some of  New Hampshire’s most complex and tragic cases, including victims of clergy sexual abuse and  victims of the Hepatitis C outbreak. Most recently, Jared wrote the Brief for the Plaintiff and  presented the oral argument before the New Hampshire Supreme Court in Chartier v. Apple  Therapy, Inc. et al.—a decision in which the Court clarified the law regarding bystander  emotional distress claims in the context of medical negligence cases.

Elie joined Abramson, Brown & Dugan in 2017 after graduating from Suffolk University Law  School, where he served as an editor on the Suffolk University Law Review. Since then, Elie has  represented numerous medical negligence victims and their families in cases involving  catastrophic injuries and wrongful death. In addition to his practice, Elie serves on the New  Hampshire Association for Justice’s Board of Governors and Publications Committee. He is  also the editor of the Verdicts and Settlements Report in the New Hampshire Trial Lawyer’s  Quarterly.

² See Trovato v. Deveau, 143 N.H. 523, 529 (1999) (New Hampshire’s wrongful death act allows  an estate to recover for the decedent’s pre-death losses when the death was unrelated to the  injury and to recover for both the decedent’s pre-death losses and the estate’s post-death  losses when the death was causally related to the injury).

³ See Smith v. Cote, 128 N.H. 231, 240 (1986) (“If the plaintiff establishes that a physician patient relationship . . . existed . . . it follows that the defendants assumed a duty to use  reasonable care in attending and treating her.”).

⁴ 123 N.H. 335 (1983).

⁵ Id., 123 N.H. at 337.

⁶ Id. (emphasis in original).

⁷ Id., 123 N.H. at 337-38.

⁸ Mayer v. Hampton, 127 N.H. 81, 84 (1985) (emphasis added). The court reiterated that the  “general rule” does not apply where the defendant actually caused the suicide. Id. ⁹ Most significantly, our Supreme Court unanimously rejected the so-called suicide rule in the  workers’ compensation context in Appeal of Pelmac Indus., 174 N.H. 528 (2021). ¹⁰ In re Haines, 148 N.H. 380, 382 (2002).

¹¹ Id. 

¹² Bronson v. Hitchcock Clinic, 140 N.H. 798, 801 (1996).

¹³ Brookline Sch. Dist. v. Bird, Inc., 142 N.H. 352, 354 (1997) (emphasis in original). ¹⁴ Bronson, 140 N.H. at 801.

¹⁵ Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 304 (1986).

¹⁶ Gowen v. Brothers, 121 N.H. 377, 379 (1981) (citations and quotations omitted). ¹⁷ Ela v. Postal Tel. Cable Co., 71 N.H. 1, 3 (1901) (“In this state it is well settled that the  question of remote and proximate cause is a question of fact to be determined by the jury.”);  Maxfield v. Maxfield, 102 N.H. 101, 105 (1959); Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 304 (1986); MaCleod v. Ball, 140 N.H. 159, 161 (1995); Bronson v. Hitchcock Clinic, 140 N.H. 798, 804 (1996); Brookline Sch. Dist. v. Bird, Inc., 142 N.H. 352, 355 (1997); Beckles v. Madden, 160 N.H. 118, 129 (2010).

¹⁸ See Rosa v. Partners in Progress, Inc., 152 N.H. 6, 14 (2005) (referring to the deterrence and compensation principles of tort law).

¹⁹ Alonzi v. Ne. Generation Servs. Co., 156 N.H. 656, 666 (2008).

²⁰ Id. (citing Smith v. Cote, 128 N.H. 231, 243 (1986)).