Arizona Supreme Court Reverses Itself – Makes Elder Abuse Claims Easier
By Kent Berk on January 27th, 2018 in Elder Abuse, Elder Law, FINANCIAL EXPLOITATION, LITIGATION, PROBATE LITIGATION
Elder abuse and financial exploitation, abuse, neglect are growing concerns in society today, with baby boomers reaching an advanced age and requiring more medical care and financial assistance. According to the National Council on Aging, “approximately 1 in 10 Americans aged 60+ have experienced some form of elder abuse. Some estimates range as high as 5 million elders who are abused each year. One study estimated that only 1 in 14 cases of abuse are reported to authorities.” Elder abuse, neglect and financial exploitation are obviously huge problems.
Arizona enacted the Adult Protective Services Act (APSA) in 1988 to provide broad remedies to protect victims of elder abuse, neglect and financial exploitation. APSA does not only protect the elderly; the statute provides protection for any “vulnerable adult.” A vulnerable adult is any person, age 18 or older, who cannot protect him- or herself from “abuse, neglect or exploitation by others because of a physical or mental impairment.” APSA also provides for enterprise liability, meaning that the facility where the abuse occurs may also be held liable. Learn more about elder law claims.
In 2002, the Arizona Supreme Court decided the case of the Estate of McGill v. Albrecht to determine under what circumstances victims of elder abuse and neglect (or their estates) can recover under APSA. There, Norma McGill had an extended history of psychiatric illness and had been placed in various behavioral health facilities for about 30 years. Norma died at age 64. Her death certificate showed that she died from, among other things, neurotoxicity secondary to medications – in other words, she overdosed. Her estate and family brought APSA and other claims against various of Norma’s providers. The trial court judge dismissed the APSA claim, finding that it “was based on Defendants’ malpractice in caring for Ms. McGill and that something more than malpractice must be shown to establish an APSA claim.”
In its ruling, the Supreme Court held that, for abuse to be actionable under APSA, the act(s) must have: (1) arisen from the relationship of recipient and caregiver, (2) been closely connected to that recipient and caregiver relationship, (3) been linked to the service provided by the caregiver due to the recipient’s incapacity, and (4) been related to the problem(s) that caused the person’s incapacity. This ruling did not supply a broad remedy of recovery that the legislature intended in adopting APSA; rather, it strictly narrowed the circumstances under which a victim could recover under APSA. This ruling made it more difficult, if not impossible in some instances, for victims to pursue claims under APSA, rendering the purpose of the Act (to supply broad remedies) almost meaningless. In its decision, the Court noted the difficulty in applying its formula: “we are well aware that this formulation does not provide an easy, bright-line test for judges and juries. But we believe it best serves the purposes of the legislation and addresses the problems the legislature sought to correct.”
However, in June 2017, the Arizona Supreme Court made a surprising ruling in Delgado v. Manor Care of Tucson AZ, LLC when it reversed its prior decision in Estate of McGill.
Delgado arose from the death of Sandra Shaw. At the time, she was a patient at a skilled nursing facility in Tucson and had several serious medical conditions, such as kidney disease, anemia, heart disease and hypertension. She had recently undergone surgery for a brain tumor. She needed to use a wheelchair and needed assistance with basic tasks, like walking, bathing, dressing and others. She was obviously a vulnerable adult as defined in APSA. Her condition briefly improved at the nursing facility, but it eventually declined and she died of sepsis – a serious infection usually contracted through a wound.
Sandra’s sister and estate brought various claims, including for abuse and neglect under APSA, against the nursing facility, Sandra’s doctor and others. The trial court applied the McGill four-part test and dismissed the APSA claims, finding that the fourth element was not satisfied because the cause of Sandra’s death, sepsis, “was not related to the conditions that caused her incapacity.”
In overruling the trial court and reversing its own decision under McGill, the Delgado Court held that, for a claim to be actionable under APSA, it simply requires that a vulnerable adult suffer an injury caused by abuse or neglect from a caregiver. This ruling is the exact broad remedy originally intended under APSA, allowing a vulnerable adult to file a claim against an abusive caregiver without having to meet other requirements that were needlessly imposed by the Court in McGill. Now, the standard for victims of abuse or neglect (or their estates) to file a claim under APSA simply requires that the vulnerable adult was abused or neglected by a caregiver. This decision conforms to public policy, allowing victims and their estates an easier way to seek remedies under APSA.
If you or a loved one are the victim of vulnerable adult abuse, neglect or financial exploitation please contact us to schedule a consultation with one of our experienced attorneys.