State Supreme Court Clarifies Elder Abuse Law

The Arizona Supreme Court has reversed a summary judgment dismissing a nursing home abuse case.

Marika Delgado was the personal representative of the estate of her sister, Sandra Shaw. Delgado appealed the trial court’s entry of summary judgment in favor of the defendants who were collectively Manor Care of Tucson. On appeal, Delgado argued that the court erred in finding that the actions that allegedly caused Shaw’s death were not related to her incapacity as required by Arizona law.

Because the Arizona Supreme Court could not say as a matter of law that the alleged negligence that was a cause of Shaw’s death was unrelated to her incapacity, the state Supreme Court reversed the judgment of the trial judge and sent the case back for further proceedings.

In March 2012, Shaw was 74 and was discharged from an acute care hospital and admitted to a Manor Care facility in Tucson. At the time of her discharge from the hospital, she had been diagnosed with incontinence, a urinary tract infection (UTI), chronic kidney disease, recent acute renal failure, anemia of chronic kidney disease, a history of coronary artery disease, hypertension and a host of other medical issues, including delirium related to depression.

By April 21, she presented with “some confusion” but “she [understood] and [could] make her needs known.” By April 24, she began to refuse to get out of bed and unable to or refused to take her medication. On April 30, Shaw presented as “very confused” and began “trying to get up at intervals.”

On May 1, she was transferred out of the “Medicare or . . . rehab wing” to the “long-term care” wing. On the same morning, Shaw presented as “lethargic” and “confused and disoriented,” and Manor Care staff noted that she “had not eaten or taken the fluids for at least 2 days.” She passed away that afternoon with the immediate cause of death as “sepsis,” which was “due to or as a consequence of” a “meningioma,” “kidney stones” and “coronary artery disease.”

In November 2013, Delgado filed an action against Manor Care alleging medical malpractice, wrongful death and abuse or neglect under the Arizona Nursing Home Abuse Statute.

After discovery, Manor Care moved for summary judgment arguing that the state statute claim should be dismissed because “the alleged negligence occurred in connection with the diagnosis and treatment of an acute medical condition.” The trial judge granted summary judgment, ruling that “sepsis is not related to that which caused the incapacity” and finding that “while there may arguably be a medical malpractice case, there is no evidence of neglect or abuse.” The court entered summary judgment and this appeal followed.

According to another state supreme court case, it was stated that “in determining whether the APSA applies to a claim of negligence, ‘the key fact is . . . the nature of the act and its connection to the relationship between the caregiver and the recipient.’”

The court stated that the APSA applies to situations in which the alleged negligence “is directly related to the caregiver’s responsibility in caring for the incapacitated patient and is one from which that patient may not be able to protect him or herself” such as a “nurse . . . placing an incapacitated person in a bathtub, turning on the water at too high temperature, and being distracted for a moment.”

Manor Care asserted that Shaw’s cause of death was an acute medical problem that was not related to her incapacity. Delgado presented triable issues of fact as to whether Manor Care’s alleged failure to seek further medical care for Shaw was “related to problems that caused [Shaw’s] incapacity.” Because the court said that Manor Care’s allegedly negligent actions were unrelated to the problems that caused Shaw’s incapacity, the trial court erred by granting summary judgment in favor of Manor Care. For the foregoing reasons, the Arizona Supreme Court reversed the summary judgment action and returned the case to the court for further disposition.

Marika Delgado, et al. v. Manor Care of Tucson, et al., No. CV-16-0178-PR.

Kreisman Law Offices has been handling nursing home abuse cases, nursing home injury lawsuits, nursing home bedsore cases, nursing home fall cases and medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Homewood, Highwood, Highland Park, Hillside, Long Grove, Morton Grove, Skokie, Schiller Park, Des Plaines, Lincolnshire, Chicago (Wicker Park, Bucktown, Logan Square, Rogers Park, Andersonville, Bronzeville, South Shore) Hinsdale, Wheaton, Joliet, Waukegan, Aurora and St. Charles, Ill.