Delgado v. Manor Care, LLC, 742 Ariz. Adv. Rep. 10 (App. Div. II, June 28, 2016) (J. Howard)

ALLEGATION DEATH OF INCAPACITATED ADULT WAS CAUSED BY CAREGIVER'S FAILURE TO SEND DECEDENT OUT FOR HOSPITALIZATION FALLS WITHIN APSA/CLAIM PRECLUSION DOES NOT APPLY TO CLAIMS BROUGHT IN THE SAME ACTION

Plaintiff sued her sister Shaw's  nursing home, Manor, in her own capacity and on behalf of Shaw for wrongful death, medical negligence and neglect and abuse of a vulnerable adult under the Arizona Adult Protective Services Act (APSA), A.R.S. §§46-451 through 46-459. The trial court granted Manor summary judgment finding that Shaw's death as a result of sepsis was not related to Shaw's incapacity as required by APSA. The Arizona Court of Appeals reversed and remanded.

The defendant first argued that the dismissal of the wrongful death and medical negligence claims served to create “claim preclusion” regarding the APSA claim—dismissal of any negligence claim precludes pursuing a “neglect” claim under the APSA.  The court of appeals rejected this argument finding that claim preclusion only applies when there is a judgment or order in one action that is being raised to defeat a second claim brought in a second action. You cannot have claim preclusion based upon actions taken by the court in the same action.

The court then found that there were triable facts under the APSA.  The seminal case is Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 57 P.3d 384 (2002), where the court held, “the negligent act or acts (1) must arise from the relationship of caregiver and recipient, 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 APSA was not intended to apply to negligence that leads to injury that "can afflict anyone, not just the incapacitated" that is "completely separate from the unique role of caregiver and incapacitated recipient like a surgeon leaving an instrument in a patient.” 

Here plaintiff's claim was that Shaw died of sepsis because Manor failed to send her to the hospital for timely care of her infection and that if Shaw was not incapacitated she could have arranged to be taken to the hospital herself. Due to her incapacity, Manor was responsible to send her out for more acute care when they lacked onsite resources to treat her.  Consequently, the “neglect and abuse” alleged here relates directly to Shaw's incapacity and the McGill test is met.