VALUE OF LIFE NOT RECOVERABLE ON ABUSE OF VULNERABLE ADULT CLAIM

By Kent Berk on February 21st, 2013 in BLOG, Elder Law, PROBATE LITIGATION

Arizona’s Adult Protective Services Act has broad coverage, far reaching remedies and allows for the recovery of substantial damages in many cases. The Act protects vulnerable or incapacitated adults from abuse or financial exploitation.

But, the Arizona Court of Appeals has found that the damages recoverable under the Act do not include the “intrinsic or inherent value” of human life. In the Estate of Winn v. Plaza Healthcare, Inc., the Estate brought a claim under the Adult Protective Services Act against the nursing home where Ms. Winn died. The Estate alleged that the Defendant nursing home abused Ms. Winn in violation of the Act, thus causing her death. Because there was no evidence that Ms. Winn suffered any physical pain or emotional distress or loss of earnings prior to her death, the Estate argued that it was entitled to recover for the “inherent or intrinsic value” of Ms. Winn’s life. The trial court dismissed the claim, and the Arizona Court of Appeals affirmed.

The Court of Appeals explained that the Act “allows a vulnerable adult ‘whose life or health is being or has been endangered or injured by neglect, abuse or exploitation’ to file an action in superior court against certain persons or enterprises. If liability is established, the court may order ‘the payment of actual and consequential damages, as well as punitive damages, costs of suit and reasonable attorney fees, to those persons injured.’” A.R.S. § 46-455(F)(4). The Court noted that the issue was not whether there is some inherent value to human life because there certainly is; rather, the issue was whether the Act allowed the recovery for such loss. It found that the Act did not allow for such recovery because such loss is not an “actual damage” recoverable under the Act. While “actual damage” under the Act includes pre-death pain and suffering and other damages, because the legislature did not specifically include damages for death in the definition of damages in the Act, like it did in other laws, the Court concluded that damages for death are not recoverable in a claim under the Act. Such damages could have been sought if the Estate had brought a claim for wrongful death under, for example, A.R.S. § 12-613.