IN THE
SUPREME COURT OF THE STATE OF ARIZONA
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
Filed June 20, 2017
Appeal from the Superior Court in Pima County
The Honorable Richard S. Fields, Judge
No. C20136560
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division Two
240 Ariz. 294 (App. 2016)
VACATED
MARIKA DELGADO, ET AL. V. MANOR CARE OF TUCSON, ET AL.
Opinion of the Court
COUNSEL:
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 (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).
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¶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:
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Opinion of the Court
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. 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 (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.
¶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, and issues of statutory construction, In re
Estate of Wyatt, 235 Ariz. 138, 139 ¶ 5 (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. Rather, her
sepsis was an unrelated, acute condition that developed several weeks after
1
Cf. 2009 Ariz. Sess. Laws, ch. 119, §§ 4-10 (1st Reg. Sess.) (providing that a
“vulnerable adult” includes an “incapacitated person,” and amending all
references in APSA to “incapacitated or vulnerable adult” to “vulnerable
adult”).
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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. Defendants asserted that the statute, by its
terms, requires multiple acts committed over a period of time. Id. at 528-30
¶¶ 8-15; 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. 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.
¶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. 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.
¶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 (2007) (APSA seeks to remedy the “evil” of abuse and neglect
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Opinion of the Court
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; Wyatt, 235 Ariz. at 140 ¶ 6
(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 juries.” Id. at 530 ¶ 17. The test is
particularly burdensome when a person, such as Shaw, suffers from
multiple medical conditions. Identifying which specific medical conditions
render a person vulnerable, and then relating subsequent treatment and
injuries to those specific “vulnerable” conditions, is no easy task. Courts
navigating their way through the McGill test have made fine distinctions
which, at times, seem to be at odds with the broad protective provisions of
APSA. See, e.g., Equihua v. Carondelet Health Network, 235 Ariz. 504, 507-08
¶¶ 8-14 (App. 2014) (applying the McGill test, the court distinguished
between hospital staff’s negligence in treating plaintiff’s head and neck
injuries, which it determined were not actionable under APSA, from staff’s
negligence in monitoring plaintiff’s feeding tube, which it determined was
actionable under APSA).
II. APSA’s Requirements for an Abuse Claim
¶17 In identifying the elements for an APSA claim, our principal
guide is the statute’s language. Section 46-455(B) provides that a “vulnerable
adult whose life or health is being or has been endangered or injured by
neglect, abuse or exploitation may file an action in superior court against
any person or enterprise that has been employed to provide care . . . .”
(Emphasis added.) Thus, an APSA claim is premised initially on whether
a person is a “vulnerable adult.” Id. A “vulnerable adult” is defined as “an
individual who is eighteen years of age or older and who is unable to
protect himself from abuse, neglect or exploitation by others because of a
physical or mental impairment.” A.R.S § 46-451(A)(9).
¶18 APSA also requires a party to show that a vulnerable adult
has suffered an “injury caused by [a caregiver’s] negligent acts or
omissions.” A.R.S. §§ 46-451(A)(1)(b), - 455(B). APSA defines a caregiver as
a person or “enterprise” employed to provide care to a vulnerable adult,
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Opinion of the Court
and includes care provided at a nursing home or an acute care hospital.
A.R.S. § 46-455(B), - 455(Q); see Wyatt, 235 Ariz. at 141 ¶ 14 (APSA includes
care provided at nursing homes and acute care hospitals).
¶19 Thus, by its terms, APSA identifies four requirements for an
actionable abuse claim: (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).
¶20 The fact that APSA identifies the requirements for an abuse
claim, combined with the difficulties accompanying the four-part McGill
test, prompts us to reconsider the McGill test. In particular, the third and
fourth prongs of the McGill test are not found in the statute, and, when
applied, have produced a great deal of confusion.
¶21 Defendants argue that if the McGill test is not followed, then
“APSA will apply to virtually all medical malpractice cases arising from
care provided to adults in inpatient healthcare institutions,” including care
of “acute conditions.” To avoid this potential liability, Defendants urge us
to continue following the four-part test and not expand the “boundaries”
set by McGill.
¶22 We recognize that the broad language of APSA creates
considerable overlap between medical malpractice claims arising under the
MMA and abuse claims under APSA. However, we will not engage in a
“narrow construction” of APSA that “thwart[s] the legislature’s goal of
protecting vulnerable adults.” Wyatt, 235 Ariz. at 141 ¶ 13. By its terms,
APSA identifies four requirements for an actionable abuse claim. Supra, ¶
19. If the legislature wishes to limit the scope of APSA by adding the
requirements of the McGill test, it may do so. It is not, however, our role to
rewrite the statute. See Ballesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz.
345, 349 ¶ 17 (2011) (stating “[i]f the legislature desires to add [] a
requirement [to A.R.S. § 20–259.01], it may do so . . . but it is not our place
to rewrite the statute”).
¶23 Additionally, Defendants claim that based on the doctrine of
legislative acquiescence, that the McGill test has been incorporated into
APSA. Specifically, Defendants contend that APSA has been amended
several times since the McGill test was adopted and, therefore, the
legislature has tacitly approved of the test. Cf. Madrigal v. Indus. Comm’n,
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69 Ariz. 138, 144 (1949) (discussing doctrine of legislative acquiescence);
Fisher v. Kaufman, 201 Ariz. 500, 502 ¶ 12 (App. 2001) (same).
¶24 We reject Defendants’ argument. The doctrine of legislative
acquiescence “is limited to instances in which the legislature has considered
and declined to reject the relevant judicial interpretation.” SW Paint &
Varnish Co. v. Ariz. Dep’t of Envtl. Quality, 194 Ariz. 22, 25-26 ¶ 21 (1999).
Thus, we do not presume legislative intent when a statute is amended “in
ways unrelated to the judicial construction at issue” absent “some
affirmative indication the legislature considered and approved our
construction.” Lowing v. Allstate Ins. Co., 176 Ariz. 101, 106 (1993). Here,
Defendants concede that none of the subject amendments concern the
definition of actionable abuse under APSA.
¶25 We therefore disapprove the McGill test and hold that an
actionable APSA abuse claim requires proof of the four basic elements set
forth in the statute. See supra, ¶ 19.
III. Delgado’s APSA Claim
¶26 Viewing the facts and all reasonable inferences in the light
most favorable to Delgado, as we must, we conclude that the superior court
erred in granting summary judgment in favor of Defendants.
¶27 Shaw qualifies as a vulnerable adult. She was a frail seventy-
four-year-old woman who, at the time of her admission, needed assistance
in virtually every daily activity of life. There is no dispute that Manor Care
qualifies as an “enterprise” employed to provide care to Shaw, and that Dr.
Cuzner was her primary physician at Manor Care. Additionally, in her
capacity as personal representative of Shaw’s estate, Delgado properly
alleges damages for Shaw’s injuries. A.R.S. § 46-455(P); In re
Guardianship/Conservatorship of Denton, 190 Ariz. 152, 157 (1997) (holding
that under APSA, representatives of vulnerable adult abuse victims “may
recover damages for the pain and suffering endured by the victims,
notwithstanding death of the victim”).
¶28 Delgado has also presented a triable issue as to whether
Manor Care abused Shaw, thereby causing her death. Delgado submitted
medical records and the preliminary expert affidavits of Nurse Kathleen
Hill-O’Neil and physician Leonard S. Williams showing that due to Shaw’s
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Opinion of the Court
serious medical conditions, she could not care for herself and required close
monitoring and medical attention to ensure her safety and well-being.
Nurse Hill-O’Neil opines that the nursing staff at Manor Care breached the
applicable standard of care by failing to notify Dr. Cuzner about Shaw’s
deteriorating condition and also by failing to provide necessary treatment
and care as her condition worsened. See Cornerstone Hosp. of Se. Ariz., L.L.C.,
v. Marner, 231 Ariz. 67, 74 ¶ 21 (App. 2012) (holding that plaintiff’s estate
alleged a viable claim for APSA abuse based on allegations that the
decedent received inadequate “nursing and medical services” while at
defendant’s long term acute-care facility, thereby causing the decedent to
become dehydrated, malnourished, and develop pressure sores that
became infected).
¶29 The superior court also erred in granting summary judgment
in favor of Dr. Cuzner. Dr. Williams opines that Dr. Cuzner breached the
standard of care by failing to properly treat Shaw’s sepsis. Dr. Williams
also concludes that Dr. Cuzner’s breach of the standard of care caused Shaw
“unnecessary pain and suffering and contributed to her death.”
¶30 Dr. Cuzner asks us to address his argument that he should
not be held liable irrespective of any potential liability on the part of Manor
Care. However, throughout this litigation, including briefing in his petition
for review, Dr. Cuzner joined in Manor Care’s argument that there was no
viable APSA claim under the McGill test because Shaw’s death was not
related to the conditions causing her incapacity. Thus, our analysis
regarding Dr. Cuzner is limited solely to the legal and factual arguments
raised by Manor Care, and we decline to address his arguments not raised
below.
¶31 Defendants argue that Delgado has failed to present any
admissible evidence showing abuse. Specifically, Defendants claim the
superior court granted their motion to strike the affidavits of Nurse Hill-
O’Neill and Dr. Williams because they were conclusory and did not
establish their qualifications to testify as experts. See A.R.S. § 12-2603
(preliminary expert affidavits); A.R.S. § 12-2604 (qualifications for medical
experts in medical malpractice claims). However, we can find no order in
the record striking the affidavits. See Delgado, 240 Ariz. at 299 ¶ 22, n.10.
Thus, we leave determination of the admissibility of these affidavits for the
superior court to resolve on remand.
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Opinion of the Court
¶32 In sum, on this record, we conclude the superior court erred
in granting summary judgment in favor of Defendants on Delgado’s APSA
abuse claim. In addition, like the court of appeals, because we reverse the
superior court’s grant of summary judgment based on Delgado’s abuse
claim, we do not decide whether Delgado alleged an actionable claim for
neglect pursuant to APSA. A.R.S. § 46-451(A) (6). Delgado, 240 Ariz. at 299
¶ 25, n.11.
CONCLUSION
¶33 Accordingly, we vacate the court of appeals’ opinion, reverse
the superior court’s grant of summary judgment, and remand this case to
the superior court for further proceedings.
10