Delgado v. Manor Care of Tucson AZ, LLC

• Decision Date: 20 June 2017
• Docket Number: No. CV-16-0178-PR,CV-16-0178-PR
• Citation: 395 P.3d 698
• Parties: 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.
• Court: Arizona Supreme Court

395 P.3d 698

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.

No. CV-16-0178-PR

Supreme Court of Arizona.

Filed June 20, 2017

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.

JUSTICE GOULD, opinion of the Court:

¶ 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, 57 P.3d 384 (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, 69 P.3d 7 (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) (defining "neglect"). Manor Care and Dr. Cuzner moved for summary judgment on Delgado's APSA claim.

¶ 7 The superior court granted Defendants' motion. In making its ruling, the court applied the four-part test adopted in McGill :

to be actionable abuse under APSA, the negligent act or acts (1) must arise from the relationship of caregiver and recipient, (2) must be closely connected to that relationship, (3) must be linked to the service the caregiver undertook because of the recipient's incapacity, and (4) must be related to the problem or problems that caused the incapacity.¹

203 Ariz. at 530 ¶ 16, 57 P.3d 384. The court concluded that, under the fourth part of the McGill test, Shaw's death, which was "attributable to sepsis," was "not related [to the condition(s) ] that [ ] caused [her] incapacity."

¶ 8 The court of appeals reversed. Delgado v. Manor Care of Tucson , 240 Ariz. 293, 299 ¶¶ 25–26, 378 P.3d 736 (App. 2016). The court held that, under McGill , a triable issue existed as to whether Defendants' alleged abuse "was related to the problems that caused Shaw's incapacity." Id. at 298–99 ¶¶ 19, 20, 23–25, 378 P.3d 736.

¶ 9 We granted review because the interpretation and application of APSA are recurring issues of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

DISCUSSION

¶ 10 We review de novo both a grant of summary judgment, Andrews , 205 Ariz. at 240 ¶ 12, 69 P.3d 7, and issues of statutory construction, In re Estate of Wyatt , 235 Ariz. 138, 139 ¶ 5, 329 P.3d 1040 (2014).

¶ 11 Defendants argue Delgado has no actionable APSA claim because she cannot satisfy the third and fourth parts of the McGill test. They contend that Shaw's sepsis was not "related to the problem or problems" that made her a vulnerable adult. McGill , 203 Ariz. at 530 ¶ 16, 57 P.3d 384. Rather, her sepsis was an unrelated, acute condition that developed several weeks after her admission to Manor Care. As a result, any alleged negligence by Defendants in treating Shaw's sepsis was not "linked" to the services or treatment Defendants "undertook" because she was a vulnerable adult. Id . To assess these arguments, we consider the Court's ruling in McGill and its continuing viability.

I. The McGill Test

¶ 12 In McGill , this Court addressed whether A.R.S. § 46–451(A)(1)(b) permits an APSA claim to be based on a physician's single act of negligence. Id. at 526 ¶ 1, 57 P.3d 384. Defendants asserted that the statute, by its terms, requires multiple acts committed over a period of time. Id . at 528–30 ¶¶ 8–15, 57 P.3d 384 ; see A.R.S. § 46–451(A)(1)(b) (defining "[a]buse" as an "[i]njury caused by negligent acts or omissions"). The defendants also argued that negligence claims against physicians could not be brought under APSA because such claims were exclusively governed by the Medical Malpractice Act (MMA), A.R.S. § 12–561 through –573. Id .

¶ 13 In construing APSA, the Court held that "we can neither automatically limit the negligent act or omission wording of A.R.S. § 46–451(A)(1) to a series of negligent acts nor say that a single act of negligence involving an incapacitated person will never give rise to an APSA action." Id . at 530 ¶ 16, 57 P.3d 384. However, the Court expressed concern that "interpreting APSA so as to apply to any and every single act of medical malpractice would [not] be consistent with" the legislature's intent, because it would give rise to negligence claims that "can afflict anyone, not just the incapacitated." Id . at 529–30 ¶ 14, 57 P.3d 384.

¶ 14 Attempting to harmonize the statutory language and the legislature's intent, the Court formulated McGill 's four-part test. Id . at 526, 529–31 ¶¶ 1, 14–16, 21–22, 57 P.3d 384. This test limits a caregiver's liability under APSA, requiring a victim of abuse to satisfy all four of its requirements to assert an actionable claim. Id . at 530, 531 ¶¶ 16, 22, 57 P.3d 384.

¶ 15 The McGill test has proved to be problematic. The legislature enacted APSA to protect vulnerable adults, and to further this purpose, it created a broad remedial cause of action against caregivers who, by means of abuse, neglect, or exploitation, endanger the life or health of a vulnerable adult. A.R.S. §§ 46–455(B), –455(O); see also In re Estate of Winn , 214 Ariz. 149, 151 ¶ 9, 150 P.3d 236 (2007) (APSA seeks to remedy the "evil" of abuse and neglect of vulnerable adults, and to "protect some of society's most vulnerable persons from abuse, neglect, and exploitation."). We generally construe such remedial statutes broadly "to effect the legislature's purpose in enacting them." Winn , 214 Ariz. at 150 ¶ 5, 150 P.3d 236 ; Wyatt , 235 Ariz. at 140 ¶ 6, 329 P.3d 1040 (same). However, the McGill test narrows the scope of a caregiver's liability by adding requirements not expressly contained in APSA.

¶ 16 The McGill test has also been difficult to apply. As McGill recognized, "[w]e are well aware that this formulation does not provide an easy, bright-line test for judges and...