Delgado v. Manor Care of Tucson,  767 Ariz. Adv. Rep. 47 (June 20, 2017)(J. Gould)

VULNERABLE ADULT CLAIMS UNDER APSA NO LONGER REQUIRE PROOF THE ALLEGED NEGLIGENCE IS LINKED TO SERVICE THE CAREGIVER RENDERS DUE TO RECIPIENT'S INCAPACITY AND RELATED TO THE PROBLEM(S) CAUSED BY THE INCAPACITY

Plaintiff's decedent died of sepsis under the care of the defendant doctor in the defendant nursing home. Plaintiffs' sued defendants alleging various claims including neglect and abuse under the

Adult Protective Services Act [APSA], A.R.S. §§46-451 through -459. The defendants motion for summary judgment was granted by the superior court  finding that the cause of decedent's death was not related to the condition that incapacitated her requiring her admission to the nursing home in the first place.  The Arizona Court of Appeals reversed finding there was a question of fact on this point. The Arizona Supreme Court vacated the court of appeals decision and  reversed and remanded the superior court.

Fifteen years ago the supreme court announced a four part test defining when the APSA applied.  Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 530 (2002): The alleged 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.

The test was designed, at least in part, to avoid overlap between the APSA and the Medical Malpractice Act [MMA]. A.R.S. §12-561 through -573.  In practice, however,  this test has not worked well or been easy to apply. In retrospect the supreme court now overrules Estate of McGill, finding the third and fourth prongs of the test are not called for by the statute. In so doing the court expressly acknowledged that significant overlap between the APSA and the MMA will exist under this new holding. That said, it is for the legislature to determine to what extent such overlap should be permitted.

In this regard, the defendants argued that since the legislature has amended the APSA several times since 2002 it has tacitly acknowledged its approval of the holding in Estate of McGill. In response the supreme court found  the doctrine of legislative acquiescence "is limited to instances in which the legislature has considered and declined to reject the relevant judicial interpretation.” 

Consequently the supreme court held that an APSA claim requires only proof that: “(1) a vulnerable adult, (2) has suffered an injury, (3) caused by abuse, (4) from a caregiver.”