Arizona Supreme Court Changes Test for Application of the Vulnerable Adult Statute to Medical Negligence Cases
June 22, 2017 – On Tuesday, the Arizona Supreme Court rejected the McGill test established 15 years ago to determine if the Arizona Protective Services Act (“APSA”) applies to medical malpractice cases. In issuing its opinion in Delgado v Manor Care of Tucson AZ, LLC, et al., the court simplified the test and determined that negligence does not need to be related to the patient’s vulnerability or the services undertaken because of the vulnerability.
In Delgado the patient was admitted to a nursing home for rehabilitation. She later died from a condition that everyone admitted was not related to her “vulnerability.” The trial court dismissed the APSA claim because the alleged negligence was not related to the problem that caused the patient’s vulnerability. The Arizona Court of Appeals reversed, finding that there was a question of fact whether the final illness and the patient’s vulnerability were related.
In its June 20 opinion, the Arizona Supreme Court reversed the trial court and vacated the Court of Appeals’ opinion. The court repudiated the four-part test established 15 years earlier in McGill v. Albrecht, finding that this test is unworkable and unsupported by the language of the statute. Instead, the court held that APSA applies to medical negligence cases if (1) the patient is “vulnerable,” (2) the patient is injured, (3) the injury is caused by “abuse,” and (4) the defendant is a caregiver as defined in APSA. The negligence does not need to be related to the vulnerability or the services that the caregiver undertook because of the vulnerability.
Delgado continues the expansion of APSA liability that began with the Arizona Supreme Court’s 2014 decision, In re Wyatt. In Wyatt, the court held that APSA can be applied to claims against general and acute care hospitals – it is not limited to claims against nursing homes and long term care facilities. Although the Delgado court recognized the substantial overlap between medical malpractice and APSA liability, it pointed out that it is up to the Arizona Legislature, not the court, to change the law. Until or unless the Legislature amends APSA, virtually every health care provider that cares for vulnerable adults (except for those expressly exempt under APSA) will be subject to APSA.
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