Tue, June 18

Appeals Court rules Arizona hospitals subject to state's elder abuse laws

PHOENIX -- Arizona hospitals are subject to being sued under the state's "elder abuse' laws, the state Court of Appeals ruled Tuesday.

Without dissent, the judge rejected the arguments by attorneys for two major hospitals that the laws are designed to give individuals and their families a way to bring suit against nursing homes and assisted care facilities.

Judge Patricia Orozco said the Legislature said the statutes cover those who "provide care.'

And she said there is no way to logically read the law to somehow conclude that does not apply to hospitals.

Orozco also rebuffed the contention that including hospitals was never the intent of lawmakers.

"Nowhere in the legislative history is there any suggestion that an acute care hospital is exempt from liability,' she wrote.

Attorney Robert Boatman who represented one of the families who sued, called the ruling is an important financial victory for victims.

They always have had the option to file a medical malpractice claim.

But he said state law limits the kinds of costs that a successful plaintiff can recover to things like filing fees and depositions.

By contrast, someone who wins an elder abuse claim can also get the losing party to pay for all out-of-pocket costs, including expert witnesses and the costs of investigations.

Boatman said that is important in these kinds of cases, where someone who gets a bed sore might be entitled to $50,000 in damages but the costs of the necessary medical experts to pursue the case can run $100,000.

No one from the Arizona Hospital and Healthcare Association was immediately available to comment on the effect of the decision.

Tuesday's ruling actually involves two separate cases.

In both situations, the survivors contend that the care their family members received violated the Adult Protective Services Act first approved by the Legislature in 1989. And in both cases, trial judges threw out those claims, saying hospitals are exempt.

Orozco said the record shows lawmakers purposely approved the law to provide an additional legal remedy for elderly people who are harmed by caregivers. And she said courts are required to read the statute in a way to make sure that the legislative intent is carried out.

In this case, Orozco and her colleagues rejected the contention by the hospitals that the phrase "provide care' is ambiguous.

She said the ordinary meaning of "care' involves being responsible for or attention to safety and well-being.' And Orozco said it is "readily apparent' the hospitals provided care to both patient.

In the case of Helen Wyatt, Orozco said during her time of Phoenix Baptist Hospital she received almost 350 medications and medical interventions from doctors, nurses, technicians and therapists.

Karl Khufuss Jr. underwent three surgeries at John C. Lincoln Hospital and got post-surgical care there.

She also rebuffed the contention lawmakers never intended to cover hospitals, saying that's not how the statute reads.

"Had the Legislature intended to limit the application of APSA to certain types of facilities, such as adult long-term health care facilities, it could have easily done so in its definition of 'enterprise,' ' Orozco wrote, meaning those who can be held liable.

Instead, the judge said lawmakers used a broad definition to include any corporation, partnership, association, labor union or legal entity "that is involved with providing care to a vulnerable adult.'

"Construing APSA in the manner urged by the hospitals would limit the remedies available to vulnerable or incapacitated individuals who have been harmed by their caregivers,' she wrote.