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Delgado v. Manor Care of Tucson AZ, LLC

Supreme Court of Arizona

June 20, 2017

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 The Honorable Richard S. Fields, Judge No. C20136560

         Opinion of the Court of Appeals, Division Two 240 Ariz. 294 (App. 2016)

          Scott E. Boehm (argued), Law Office of Scott E. Boehm, P.C., Phoenix, Melanie L. Bossie, Mary Ellen Spiece, Wilkes & McHugh, P.A., Scottsdale, Attorneys for Marika Delgado.

          James W. Kaucher (argued), Danielle J.K. Constant, Gust Rosenfeld, P.L.C., Tucson, Attorneys for Manor Care.

          Anne M. Fulton-Cavett (argued), Cavett & Fulton, Tucson, Attorneys for Gordon J. Cuzner, M.D., and IPC The Hospitalist Company, Inc.

          David L. Abney, Knapp & Roberts, P.C., Scottsdale; and Stanley G. Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson, Attorneys for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers Association.

          JUSTICE GOULD authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL, TIMMER, BOLICK and LOPEZ joined.

          OPINION

          GOULD JUSTICE.

         ¶1 In this case we are asked to determine what constitutes an actionable claim for abuse of a vulnerable adult under the Adult Protective Services Act (APSA), A.R.S. §§ 46-451 through -459. We hold that such a claim requires proof that: (1) a vulnerable adult, (2) has suffered an injury, (3) caused by abuse, (4) from a caregiver. A.R.S. §§ 46-451(A)(1)(b), -455(B). In making this determination, we abolish the four-part test for an actionable claim set forth in Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 530 ¶ 16 (2002).

         BACKGROUND

         ¶2 Because the superior court granted summary judgment, we review the facts and reasonable inferences in the light most favorable to Marika Delgado as the non-moving party. See Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 (2003).

         ¶3 This case arises from the death of Sandra Shaw while she was a patient at Manor Care's skilled nursing facility in Tucson. Dr. Gordon J. Cuzner was Shaw's primary treating physician at Manor Care.

         ¶4 After being treated at four different hospitals in late 2011 and early 2012, Shaw was discharged to Manor Care for physical and occupational therapy, as well as skilled nursing care. When Shaw was admitted to Manor Care in March 2012, she was in poor health. Shaw was suffering from several serious medical conditions, including chronic kidney disease, decreased kidney function, acute kidney failure, anemia, heart disease, and hypertension; she also had recently undergone surgery to remove a brain tumor and had a history of urinary tract infections. Additionally, Shaw was confined to a wheelchair and needed assistance with walking, bathing, dressing, toileting, transfers, and bed mobility.

         ¶5 Following her admission, Shaw's condition initially improved. However, by late April 2012, her condition was deteriorating. She became confused, refused to get out of bed, and began eating and drinking less. On April 30, Dr. Cuzner ordered lab tests and a urinalysis; the results indicated that Shaw had an "early" septic infection. Nonetheless, Dr. Cuzner issued no new orders or treatment for Shaw. On the morning of May 1, Shaw's condition worsened. She was confused, disoriented, and lethargic, and had not eaten or taken any fluids in over two days. The assistant director of nursing was notified of her condition, but no further orders or treatment were provided for Shaw. A few hours later, she died. The cause of death was sepsis.

         ¶6 Delgado, Shaw's sister and the personal representative of her estate, filed this action against Dr. Cuzner, Manor Care, and several persons and entities that allegedly owned or were related to Manor Care (collectively, "Defendants"). Delgado alleged several claims, including a claim for both abuse and neglect of a vulnerable adult under APSA. See A.R.S. § 46-451(A)(1)(b) (defining "abuse"); A.R.S. § 46-451(A)(6) ...


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