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 The Honorable Richard
S. Fields, Judge No. C20136560
of the Court of Appeals, Division Two 240 Ariz. 294 (App.
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.
W. Kaucher (argued), Danielle J.K. Constant, Gust Rosenfeld,
P.L.C., Tucson, Attorneys for Manor Care.
M. Fulton-Cavett (argued), Cavett & Fulton, Tucson,
Attorneys for Gordon J. Cuzner, M.D., and IPC The Hospitalist
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.
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).
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).
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.
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.
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
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) ...