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Delgado v. Manor Care of Tucson, AZ, LLC

Court of Appeals of Arizona, Second Division

June 28, 2016

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,
v.
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.

         Appeal from the Superior Court in Pima County No. C20136560 The Honorable Richard S. Fields, Judge

          Law 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

          Gust Rosenfeld, P.L.C., Tucson By James W. Kaucher and Danielle J. K. Constant Counsel for Defendants/Appellees

          Cavett & 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.

          OPINION

          HOWARD, Presiding Judge

         ¶1 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[1](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[2] 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.

         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 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, [3] suicidal ideation, and delirium related to depression. Shaw initially presented as "alert" but was only oriented to "place" and not "time, " "person, " or "situation."

         ¶3 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.

         ¶4 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."

         ¶5 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.

         ¶6 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."

         ¶7 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 condition."[4]

         ¶8 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 ...


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