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Estate of McGill v. Albrecht11/12/2002
RELIEF GRANTED
We granted review to determine whether a person may maintain a damage action under the Adult Protective Services Act (APSA), A.R.S. § 46-455 et seq., for injuries caused by negligent medical care provided to a vulnerable or incapacitated adult. Examining the interplay between APSA and the Medical Malpractice Act (MMA), A.R.S. § 12-561 et seq., we conclude that under some circumstances such an action may be maintained.
FACTS
Norma McGill died on November 7, 1997, at age sixty-four. The cause of her death, as listed on her death certificate, was cardiac arrest due to neurotoxicity secondary to medications and breast cancer metastasis.
Ms. McGill had a long history of psychiatric illness and had been placed in behavioral health facilities, under the care and treatment of various providers, for about thirty years. In 1993, ComCare, a company providing behavioral and mental health services, assigned a case manager to coordinate Ms. McGill's care needs, together with a psychiatrist and a nurse to monitor her medications and related needs. From October 1994 until April 1997, Doctor Tran, a psychiatrist employed by ComCare, assumed responsibility for monitoring Ms. McGill's medication and care and assessing her psychiatric condition. From September 1994 until March 1997, Doctor Beach was Ms. McGill's primary care physician; he continued in that capacity during the time when ComCare was responsible for Ms. McGill's psychiatric care.
After Ms. McGill's death, her estate, on behalf of Ms. McGill and her surviving children (collectively Plaintiffs), brought an action against Doctor Beach, ComCare, and Doctor Tran (collectively Defendants), alleging their negligence, neglect, and abuse of Ms. McGill entitled Plaintiffs to recover under both APSA and MMA. Defendants moved to dismiss the APSA claim on the grounds that acts of medical negligence could not form the basis for an APSA action. Judge Hotham, the trial judge, ruled that an action based on negligence could be maintained under either or both acts. Defendants subsequently moved for summary judgment, alleging that under the facts of the case, Plaintiffs' theories were necessarily based on Defendants' acts of medical malpractice, thus precluding an APSA action. By that time, the case had been transferred to Judge Albrecht, who ruled that Plaintiffs' APSA claim was based on Defendants' malpractice in caring for Ms. McGill and that something more than malpractice must be shown to establish an APSA claim. Accordingly, Judge Albrecht dismissed the APSA claim, leaving the medical malpractice claims for jury trial. Plaintiffs brought a direct special action in this court, seeking relief from that order. We declined jurisdiction, referring the matter to the court of appeals. Rule 7, Ariz.R.P.Spec.Act. After the court of appeals declined jurisdiction, Plaintiffs sought review by this court. Rule 8(b), Ariz.R.P.Spec.Act. The issue is one of first impression and statewide importance. We granted review, thus accepting jurisdiction of the special action proceeding. We do not usually review pretrial rulings granting partial summary judgment but do so in the present case for the reasons described in our prior opinion dealing with APSA, Denton v. Superior Court, 190 Ariz. 152, 154, 945 P.2d 1283, 1285 (1997). The reasons given inDenton for taking jurisdiction still apply. Id.
DISCUSSION
A. The Adult Protective Services Act
Adopted in 1989, the civil version of APSA was intended to create a statutory civil cause of action. Id. The legislature created this cause of action with the following words: Anincapacitated or vulnerable adult whose life or heal
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