Marika Delgado, Personal Representative of the Estate of Sandra Shaw, on behalf of the Estate of Sandra Shaw, deceased; and Marika Delgado, Personal Representative, for and on behalf of Sandra Shaw's statutory beneficiaries and/or Estate pursuant to A.R.S. § 12-612(A), Plaintiff/Appellant,
Manor Care of Tucson, AZ, LLC, an Arizona limited liability company, dba Manor Care Health Services, Inc. aka Manorcare Health Services, LLC; HCR Manorcare, LLC, a Delaware limited liability company; Manor Care, Inc., a Delaware corporation; HCR Manorcare, Inc., a Delaware corporation; HCR IV Healthcare, LLC, a Delaware limited liability company; HCR III Healthcare, LLC, a Delaware limited liability company; HCR II Healthcare, LLC, a Delaware limited liability company; HCR Healthcare, LLC, a Delaware limited liability company; HCRMC Operations, LLC, a Delaware limited liability company; HCR Manorcare Operations II, LLC, a Delaware limited liability company; Heartland Employment Services, LLC, an Ohio limited liability company; IPC The Hospitalist Company Inc., a Delaware corporation; William Amoureux, Administrator; and Gordon J. Cuzner, M.D., Defendants/Appellees.
from the Superior Court in Pima County No. C20136560 The
Honorable Richard S. Fields, Judge
Office of Scott E. Boehm, P.C, Phoenix By Scott E. Boehm
Wilkes & McHugh, P.A., Phoenix By Melanie L. Bossie and Mary
Ellen Spiece Co-Counsel for Plaintiff/Appellant
Rosenfeld, P.L.C., Tucson By James W. Kaucher and Danielle J.
K. Constant Counsel for Defendants/Appellees
& Fulton, PC, Tucson By Anne M. Fulton-Cavett Counsel for
Defendants/Appellees Gordon J. Cuzner, M.D. and IPC The
Hospitalist Company, Inc.
Presiding Judge Howard authored the opinion of the Court, in
which Judge Espinosa and Judge Staring concurred.
HOWARD, Presiding Judge
Marika Delgado, in her personal capacity and as
representative of the estate of her sister, Sandra Shaw,
appeals from the trial court's entry of summary judgment
in favor of defendants(collectively Manor Care) on Delgado's
claim for abuse or neglect under the Arizona Adult Protective
Services Act (APSA), A.R.S. §§ 46-451 through
46-459. On appeal, Delgado argues the court erred in finding
that the actions that allegedly caused Shaw's death were
not related to her incapacity as required by APSA and
Estate of McGill ex rel. McGill v. Albrecht, 203
Ariz. 525, 57 P.3d 384 (2002). Because we cannot
say, as a matter of law, that the alleged negligence was
unrelated to her incapacity, we reverse the judgment of the
trial court and remand for further proceedings.
and Procedural Background
"On appeal from summary judgment, we view the facts and
all justifiable inferences in the light most favorable to the
nonmoving party." Equihua v. Carondelet Health
Network, 235 Ariz. 504, ¶ 2, 334 P.3d 194, 195-96
(App. 2014). In March 2012, Shaw, who was seventy-four years
old at the time, was discharged from an acute care hospital
and entered a Manor Care facility. At the time of her
discharge, she had been diagnosed with incontinence, a
urinary tract infection (UTI), chronic kidney disease, recent
acute renal failure, anemia of chronic kidney disease, a
history of coronary artery disease, hypertension, a history
of an atrophic kidney, kidney stones, debilitation, a
meningioma,  suicidal ideation, and delirium related to
depression. Shaw initially presented as "alert" but
was only oriented to "place" and not "time,
" "person, " or "situation."
As of April 9, Shaw was continuing to take antibiotics for
her UTI, was not complaining of any particular pain, and was
sleeping at long intervals. Around this time, Shaw had a
wound on her sacrum. As of April 13, she was still on
antibiotics for her UTI, and by April 16, she was able to
move, with assistance, from her bed to a wheelchair. She was
scheduled to be released from the facility on May 2, when
Delgado returned from a trip to Europe.
By April 21, Shaw presented with "some confusion"
but "she [understood] and [could] make her needs
known." By April 24, she began to refuse to get out of
bed, and on April 27 began to reduce "oral intake."
On April 30, Shaw presented as "[v]ery confused"
and began "[t]rying to get up at intervals." Later
that day, Shaw was still "confused and lethargic"
and "refused all med[icines] and meals."
Manor Care staff ordered lab tests and a urinalysis, and
obtained a urine sample which was "very cloudy and milky
looking." Cuzner, Shaw's treating physician,
reviewed the test results and ordered an immediate chest
x-ray. In the progress note associated with his assessment of
Shaw, Cuzner noted "early sepsis" as the diagnosis.
Later that day, Shaw was "[a]lert, " and
"[v]erbally responsive, " but had a "very poor
appetite." After receiving the results of the x-ray,
Cuzner issued no new orders. Neither Cuzner nor Manor Care
staff provided any further medical attention to Shaw.
On May 1, Shaw was transferred out of the "Medicare or .
. . rehab wing" to the "long-term care" wing.
At 11:40 a.m. Shaw presented as "lethargic" and
"confused and disoriented, " and Manor Care staff
noted that she "[had] not eaten or taken fluids for [at]
least 2 days." Nurse Jeannette Picozzi notified the
Assistant Director of Nursing of Shaw's condition at that
time, but no further treatment was provided. By 3:05 p.m.
that day, Shaw had died, and Cuzner noted the immediate cause
of death as "sepsis" which was "due to or as a
consequence of" a "meningioma, " "kidney
stones, " and "coronary artery disease."
In November 2013, Delgado filed an action against Manor Care
alleging medical malpractice, wrongful death, and abuse or
neglect under APSA. After discovery, Manor Care moved for
summary judgment, arguing the APSA claim should be dismissed
because "the alleged negligence occurred in connection
with the diagnosis and treatment of an acute medical
The trial court granted summary judgment, ruling that
"the sepsis is not related to that which caused the
incapacity" and finding that "while there may
arguably be a medical malpractice case, there is no evidence
of neglect or abuse." The court explained that
"[a]ttention and care were well-documented, although not
always successful in delivery." The court entered
summary judgment, and this appeal ...