With a decision that dismantles a four-part test established in 2002, the Arizona Supreme Court has reversed and remanded a Pima County court’s granting of summary judgment to a nursing home and a doctor who were sued on behalf of a patient, who died while a resident of the nursing home. The lawsuit alleged abuse and neglect of Sandra Shaw under Arizona’s Adult Protective Services Act, and was reported by Law360 in “Arizona Supreme Court Clarifies State’s Elder Abuse Law.” The action was brought against Manor Care of Tucson and Dr. Gordon J. Cuzner, by Marika Delgado on behalf of Sandra Shaw.
Ms. Shaw went to Manor Care’s Tucson facility, after treatment at several hospitals in 2011 and 2012. At the time, she’d already suffered from kidney and heart disease and had a prior operation to remove a brain tumor. After some improvement, her condition worsened in April 2012.
Dr. Cuzner ordered a lab test and urinalysis which showed evidence of an “early” septic infection. However, no additional care was given. After two days of not eating or taking fluids, Shaw’s condition was reported to the assistant director of nursing. But again, no action was taken, and she died the same day.
The lawsuit alleged abuse and neglect under the APSA and other claims. The trial court granted a motion from the facility and doctor for summary judgment, holding that the claims failed a four-part test derived from the 2002 Arizona Supreme Court case, Estate of McGill ex rel. McGill v. Albrecht. That test says that a proper claim under the Act must arise from a caregiver-recipient relationship, be closely connected to the relationship, be connected to service given “because of the recipient's incapacity” and be related to the problems causing the incapacity.
The trial court ruled that the death from sepsis was “not related [to the condition(s)] that  caused [her] incapacity.” However, the Supreme Court held that the McGill test was difficult to apply in cases like Shaw’s, where patients had multiple medical conditions throughout their nursing home stay. In such cases, the Supreme Court found that “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.”
The Court referred to the law itself, finding that it provides four elements: the individual is a vulnerable adult who has suffered an injury caused by abuse from a caregiver.
“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,” the Court said.
As a result, the Supreme Court said the McGill test should be abandoned in favor of using the four elements of the APSA. With that analysis, the Court ruled that Delgado’s suit on behalf of Shaw was valid and reversed the trial court’s order.
The attorney representing the nursing home made a statement that the Arizona Vulnerable Adult Abuse statute has been at the center of much litigation and the state legislature should direct its attention to fixing the statute.
Reference: Law360 (June 20, 2017) “Arizona Supreme Court Clarifies State’s Elder Abuse Law”