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Equihua v. Carondelet Health Network

Court of Appeals of Arizona, Second Division

February 3, 2014

Martha Equihua, Personal Representative of the Estate of Julio Preciado, on behalf of the Estate of Julio Preciado, and Martha Equihua, Personal Representative, for and on behalf of Julio Preciado's statutory beneficiaries pursuant to A.R.S. § 12-612(A), Plaintiff/Appellant,
Carondelet Health Network, an Arizona corporation, dba Carondelet St. Mary's Hospital, Defendant/Appellee.

Appeal from the Superior Court in Pima County No. C20117435 The Honorable Kenneth Lee, Judge

Law Office of Scott E. Boehm, P.C., Phoenix By Scott E. Boehm Wilkes & McHugh, P.A., Phoenix By Melanie L. Bossie and Donna Y. Oh Counsel for Plaintiff/Appellant

Mac Ban Law Offices, P.A., Tucson By Laura V. Mac Ban and Michael L. Linton Counsel for Defendant/Appellee

Chief Judge Howard authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.


HOWARD, Chief Judge

¶1 Martha Equihua, personal representative for the estate of Julio Preciado, appeals from the trial court's entry of summary judgment in favor of Carondelet St. Mary's Hospital ("St. Mary's") on Equihua's claim for abuse under the Adult Protective Services Act ("APSA") and wrongful death. On appeal, Equihua argues the trial court erred in finding that her claim did not fall under the APSA and that her wrongful death claim therefore also failed. Because we find Equihua properly alleged actionable abuse under the APSA, we reverse and remand.

Factual and Procedural Background

¶2 On appeal from summary judgment, we view the facts and all justifiable inferences in the light most favorable to the non-moving party. Modular Mining Sys., Inc. v. Jigsaw Technologies, Inc., 221 Ariz. 515, ¶ 2, 212 P.3d 853, 855 (App. 2009). In December 2009, Preciado had a stroke and was hospitalized at St. Mary's for ten days. The stroke caused dysphagia and put Preciado at an increased risk of aspirating, which required St. Mary's to place a feeding tube, known as a PEG tube, into his stomach. The stroke also left Preciado dependent on caregivers for his daily needs, including personal hygiene, dressing, and eating. After being treated by St. Mary's, he was transferred to a residential care facility.

¶3 In February 2010, Preciado was taken back to the emergency room at St. Mary's and admitted for an abnormal heart rate and head and neck pain following a fall at the residential care facility. After he was admitted, St. Mary's administered tube feeding to Preciado for approximately 6.5 hours. After his feeding was complete, Preciado's nurses noticed his respiratory rate had risen, his abdomen was distended, the feeding tube had a large amount of "residual volume, " and there was a "crackling" sound coming from Preciado's lungs. Later that day, Preciado went into respiratory distress and subsequently died from a pulmonary hemorrhage secondary to coagulopathy.

¶4 Following Preciado's death, Equihua filed an APSA and wrongful death claim against St. Mary's, Preciado's residential care facility, and the nurse and physician assigned to care for Preciado at that facility. The trial court granted summary judgment to St. Mary's, concluding the APSA did not apply to Equihua's allegations that St. Mary's was negligent during Preciado's tube feeding. The court additionally ruled that because the wrongful death claim was predicated on the APSA claim, it necessarily failed as well. The trial court entered a final judgment pursuant to Rule 54(b), Ariz. R. Civ. P. We have jurisdiction over Equihua's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Adult Protective Services Act

¶5 Equihua argues the trial court erred in granting summary judgment to St. Mary's because her claim falls under the APSA based on the factors enumerated in Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 57 P.3d 384 (2002). On appeal from summary judgment, we determine de novo whether the trial court correctly applied the law and whether there are any genuine disputes as to any material fact. See Dayka & Hackett, LLC v. Del Monte Fresh Produce N.A., 228 Ariz. 533, 6, 269 P.3d 709, 711-12 (App. 2012). The trial court should grant summary judgment when "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). However, we will reverse a grant of summary judgment when "the trial court erred in applying the law." Eller Media Co. v. City of Tucson, 198 Ariz. 127, ¶ 4, 7 P.3d 136, 139 (App. 2000).

¶6 The APSA "provides a statutory cause of action for incapacitated or vulnerable adults who are the victims of neglect, abuse or exploitation." In re Estate of Wyttenbach, 219 Ariz. 120, ¶ 12, 193 P.3d 814, 817 (App. 2008); see also A.R.S. §§ 46-455, 46-456. The Act was intended to "protect a class of mostly elderly or mentally ill citizens from harm caused by those who have undertaken to give them the care they cannot provide for themselves" and "increase the remedies available to and for" those elderly and mentally ill individuals. Estate of McGill, 203 Ariz. 525, ¶¶ 6, 14, 57 P.3d at 387-88.

¶7 As relevant here, the APSA provides that "[a] vulnerable adult whose life or health is being or has been endangered or injured by neglect, abuse or exploitation may file an action . . . against any person or enterprise that has been employed to provide care, [or] that has assumed a legal duty to provide care." § 46-455(B). Abuse includes "injury caused by negligent acts or omissions." A.R.S. § 46-451(A)(1)(b). A vulnerable adult is defined as "an individual who is eighteen years of age or older and who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment." § 46-451(A)(9). The parties do not dispute that Preciado was a vulnerable adult under the APSA. See ยง 46-455(B). Additionally, the term "care" is ...

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