Opinion
2 CA-CV 2023-0183
03-01-2024
Holly Richardson, as Personal Representative of the Estate of Sally A. Hendrix, and as Statutory Plaintiff on behalf of Sally Hendrix's statutory beneficiaries, Plaintiff/Appellant, v. Jack Richard Hannallah, MD; Betsy Zeh, PA-C; Modern Vascular Institute, LLC; Modern Vascular, LLC; Modern Vascular of Glendale, LLC; and Modern Vascular of Tucson, LLC, Defendants/Appellees.
Shore Dombrowski Law Firm P.C., Tucson By Bonnie S. Dombrowski and Bailey Law Firm PLLC, Tempe By Cynthia A. Braun Counsel for Plaintiff/Appellant. Broening Oberg Woods &Wilson PC, Phoenix By Patrick D. White Counsel for Defendants/Appellees Jack Hannallah and Betsy Zeh. Serpe Andrews PLLC, Houston, Texas By Ryan L. Clement Counsel for Defendants/Appellees Modern Vascular Institute, LLC; Modern Vascular, LLC; Modern Vascular of Glendale, LLC; and Modern Vascular of Tucson, LLC. Jones, Skelton &Hochuli P.L.C., Phoenix By Eileen Dennis GilBride Counsel for Defendants/Appellees Jack Hannallah; Betsy Zeh; Modern Vascular Institute, LLC; Modern Vascular, LLC; Modern Vascular of Glendale, LLC; and Modern Vascular of Tucson, LLC.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20214651 The Honorable Kellie Johnson, Judge.
Shore Dombrowski Law Firm P.C., Tucson By Bonnie S. Dombrowski and Bailey Law Firm PLLC, Tempe By Cynthia A. Braun Counsel for Plaintiff/Appellant.
Broening Oberg Woods &Wilson PC, Phoenix By Patrick D. White Counsel for Defendants/Appellees Jack Hannallah and Betsy Zeh.
Serpe Andrews PLLC, Houston, Texas By Ryan L. Clement Counsel for Defendants/Appellees Modern Vascular Institute, LLC; Modern Vascular, LLC; Modern Vascular of Glendale, LLC; and Modern Vascular of Tucson, LLC.
Jones, Skelton &Hochuli P.L.C., Phoenix By Eileen Dennis GilBride Counsel for Defendants/Appellees Jack Hannallah; Betsy Zeh; Modern Vascular Institute, LLC; Modern Vascular, LLC; Modern Vascular of Glendale, LLC; and Modern Vascular of Tucson, LLC.
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE.
¶1 Holly Richardson, as representative of the estate of her decedent mother, Sally Hendrix, appeals from the superior court's partial summary judgment in favor of Modern Vascular Institute, LLC, Modern Vascular, LLC, Modern Vascular of Glendale, LLC, and Modern Vascular of Tucson, LLC (collectively "the defendants"). Richardson contends the court erred in concluding that no reasonable juror could find Hendrix to be a vulnerable adult under A.R.S. § 46-451(A)(12). We affirm.
Factual and Procedural Background
¶2 We review the facts and reasonable inferences in the light most favorable to the non-moving party on appeal from summary judgment. See Delgado v. Manor Care of Tucson AZ, LLC, 242 Ariz. 309, ¶ 2 (2017). On June 12, 2019, sixty-nine-year-old Hendrix went to Modern Vascular of Glendale, LLC, where a nurse practitioner evaluated her left lower leg, including a diabetic ulcer on her left heel. Hendrix reported that her "main concern" was the sore on her left foot, and Richardson explained that the wound had been causing Hendrix to have difficulty in walking. The nurse practitioner recommended Hendrix to undergo an angiogram on both lower legs, starting on the left one.
¶3 Hendrix delayed the treatment to accommodate vacation travel. During that time, Hendrix was, according to Richardson, "managing her own medical care," had no "cognitive problems," could "drive herself," and was "independent." Still, according to Richardson, Hendrix "had problems with mobility, had a sore on her left foot and at times needed a wheelchair."
¶4 Following the vacation, Hendrix returned to Modern Vascular of Tucson on September 12, 2019. She was seen by Jack Hannallah, M.D., who confirmed that Hendrix needed an angiogram and performed one on Hendrix's left leg with additional interventions. Hendrix returned on September 17 for a second angiogram with additional interventions for her left leg. At a follow-up appointment on October 2, Betsy Zeh, a physician's assistant, recommended an angiogram with intervention for Hendrix's right leg.
¶5 On October 31, during the right-leg procedure, Hendrix suffered "a respiratory arrest leading to cardiac arrhythmia." Thereafter, Hendrix was hospitalized for several weeks and later discharged to a longterm care facility. She passed away on February 26, 2020. In September 2021, Richardson filed suit for medical malpractice, violation of Adult Protective Services Act (APSA) (A.R.S. §§ 46-451 to 46-455), and wrongful death against the defendants.
¶6 The defendants filed a motion for partial summary judgment on Count Two, Richardson's APSA claim, asserting that Hendrix was not a "vulnerable adult," and they were not "enterprises employed to provide care to a vulnerable adult" under APSA. Richardson asserted in her response to the motion for summary judgment that no discovery had been done in the case, and she repeats that statement on appeal. She did not, however, request relief under Rule 56(d), Ariz. R. Civ. P. 56, by asserting that she cannot present evidence essential to justify her opposition, or assert that the court could not enter summary judgment on the issues raised from the record. Instead, she argued that Hendrix was a vulnerable adult, and the defendants were indeed statutory "caregivers." The superior court granted the defendants' motion for partial summary judgment, concluding that, although the defendants were caregivers under APSA,
[T]here are not sufficient facts for a jury to conclude that the impairments rendered Sally Hendrix unable to protect herself which would make her a vulnerable adult based on the uncontested facts that Ms. Hendrix presented independently to Modern Vascular throughout the course of her treatment, she cared for herself without assistance from others, she managed her own financial affairs, she had no cognitive deficiencies, [she] was independent in all aspects of her daily life, including driving herself around and managing her own medical care .... There is no genuine issue of material fact for trial on the issue of whether Ms. Hendrix was a vulnerable adult.
Count II, brought under the Adult Protective Services Act (APSA), A.R.S. §§ 46-451 to 46-474, was brought "as to all defendants," including individual defendants Jack Richard Hannallah, MD and Betsy Zeh, P.A. However, Richardson stipulated that doctors were exempt under the APSA statute and did not appeal the grant of summary judgment in the individual defendants' favor on the APSA claim.
The court entered its ruling pursuant to Rule 54(b), Ariz. R. Civ. P., and Richardson appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶7 Richardson argues the superior court erred in granting the defendants' motion for partial summary judgment as to her APSA claim. She claims, as she did below, that Hendrix's physical impairments made her vulnerable to the defendants' alleged exploitation scheme.
¶8 "On appeal from summary judgment, we determine de novo whether the trial court correctly applied the law and whether there are any genuine disputes as to any material fact." Equihua v. Carondelet Health Network, 235 Ariz. 504, ¶ 5 (App. 2014). Summary judgment is appropriate "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). Richardson does not argue that disputed facts prevented entry of judgment, merely that the court got the law wrong.
I. Vulnerable Adult
¶9 In interpreting a statute, we strive to give effect to its plain meaning. See State ex rel. Ariz. Dep't of Revenue v. Tunkey, 254 Ariz. 432, ¶¶ 31-32 (2023) (Bolick, J., concurring); Roberts v. State, 253 Ariz. 259, ¶ 20 (2022) ("[C]ourts will not read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself," and "will not inflate, expand, stretch or extend a statute to matters not falling within its expressed provisions" (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965)). However, if an ambiguity exists, "we attempt to determine legislative intent by interpreting the statute as a whole, and consider 'the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose.'" Aros v. Beneficial Arizona, Inc., 194 Ariz. 62, 66 (1999) (quoting Zamora v. Reinstein, 185 Ariz. 272, 275 (1996)). We find no ambiguity in the statutes at issue here.
¶10 Under APSA, specifically § 46-455(B):
A vulnerable adult whose life or health is being or has been endangered or injured by neglect, abuse or exploitation may file an action in superior court against any person or enterprise that has been employed to provide care, that has assumed a legal duty to provide care or that has been appointed by a court to provide care to such vulnerable adult for having caused or allowed such conduct.
Our supreme court tells us that there are "four requirements for an actionable abuse claim: (1) a vulnerable adult, (2) has suffered an injury, (3) caused by abuse, (4) from a caregiver." Delgado, 242 Ariz. 309, ¶¶ 18-19. Only whether Hendrix was a statutory "vulnerable adult" is at issue on appeal.
¶11 A "vulnerable adult" under APSA is an individual who is eighteen years of age or older and who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment. § 46-451(A)(12). All parties agree that Hendrix was sixty-nine-year-old and, as the superior court found, had several health problems and was physically impaired at the time she received treatment from the defendants. The salient issue, then, is whether Hendrix's physical impairment rendered her "unable to protect [herself] from abuse, neglect or exploitation by others." Id.
¶12 Richardson asserts that Hendrix's physical impairment made her unable to protect herself from the defendants' particular conduct given her motivation to be healed, the trust reposed in healthcare providers, and the providers' "unequal power and knowledge vis a vis" Hendrix as the patient. Richardson argues that "APSA by its plain language does not require an adult to be vulnerable . . . under every circumstance"; instead, it should be determined based on the individual's vulnerability to specific situations. She further asserts that "exploitation" was intentionally included in both sections 46-451(A) and 46-455(B) because the legislature intended to protect "adults who are vulnerable to the particular kind of exploitation" like here. Consequently, Richardson argues that Hendrix was vulnerable to the exploitation of the defendants because she, as a patient, trusted the defendants, as medical providers, and was highly motivated to get out of pain.
¶13 The defendants assert that a plaintiff's physical impairment must generally render her unable to protect herself from abuse, neglect or exploitation of others, not only from particular kinds of abuse, neglect or exploitation. And further that Hendrix competently managed her own affairs generally and therefore was capable of self-protection. The defendants contend that "[i]ndividuals are not 'vulnerable' within the APSA just because they might have an ailment they really want to be cured."
¶14 Richardson did not cite any relevant authority supporting her argument that a vulnerable adult is determined based on the victim's vulnerability against specifically alleged exploitative conduct, whether in the context of a trusting relationship or otherwise, even while she enjoys a general ability to protect herself. Under Richardson's analysis, any patient who is generally competent and independent would nonetheless be a vulnerable adult under APSA anytime the patient falls ill and becomes highly motivated to feel better with the help of a doctor. Our courts have not yet found such a circumstance.
A.R.S. § 46-456, a different statute within APSA addressing financial exploitation-not at issue here-does require the presence of a trusting or fiduciary relationship, protecting against the particular vulnerabilities that may arise in such cases.
¶15 In Delgado, "a frail seventy-four-year-old woman who, at the time of her admission, needed assistance in virtually every daily activity of life" was qualified as a vulnerable adult under APSA. 242 Ariz. 309, ¶ 27. In Davis, the victim was a "vulnerable adult" because she was "physically frail and unable to walk" while being "in need of assistance to carry out many of her daily activities such as bathing, walking and meal preparation," she needed "care and companionship twelve hours a day, seven days a week," and her "financial activities were being handled by her son-in-law." Davis v. Zlatos, 211 Ariz. 519, ¶¶ 24-26 (App. 2005); see also In re Estate of Newman, 219 Ariz. 260, ¶ 33 (App. 2008) (holding victim was an "incapacitated or vulnerable adult"; court noted she was unable to be left alone, had consistently diminished cognitive ability, and needed constant care).
In State v. Church, the trial court applied the vulnerable adult definition currently found in A.R.S. § 46-451(A)(12) and found the victim as a vulnerable adult because she was dependent on ongoing assistance and supervision due to her physical and mental impairments. No. 1 CA-CR 080812, ¶¶ 20, 22 (Ariz. App. Dec. 15, 2009) (mem. decision). In Yamamoto v. Kercsmar & Feltus, PLLC, the court found the victim as a vulnerable adult who was in need of assistance for her daily and financial matters. No. 1 CA-CV 14-0580, ¶¶ 23-25 (Ariz. App. Apr. 19, 2016) (mem. decision). In In re Estate of Jonnas, the court found the victim as a vulnerable adult who had severe health problems and was dependent on the caretaker's assistance. No. 1 CA-CV 12-0801, ¶ 19 (Ariz. App. Jan. 7, 2014) (mem. decision). In In re Guardianship of Garner, the court found an individual was a vulnerable adult who "suffered from progressive dementia and mobility impairments, which rendered most household chores and personal care difficult, leaving her vulnerable to abuse, neglect, and exploitation." No. 2 CA-CV 20140071, ¶¶ 17, 20 (Ariz. App. Feb. 25, 2015) (mem. decision).
¶16 Here, Hendrix was in pain from the diabetic ulcer on her foot and sought medical treatment for that. Because of the ulcer, she had problems with mobility and sometimes needed a wheelchair for long distances. She had other health conditions such as a thyroid disorder and hypertension. But there is no indication in the record, as the superior court concluded, that these health conditions made her unable to protect herself from abuse, neglect or exploitation by others. Indeed, Richardson testified that Hendrix "was independent in all respects in terms of living her life" before October 31, 2019-her last visit to Modern Vascular. She was "able to manage her own financial affairs during that time." She vacationed. And she visited two of the defendants' medical facilities on five separate occasions and signed at least five consent forms for medical procedures without any assistance. And nothing in the record shows that Hendrix had any cognitive deficiency.
¶17 Unlike the victim in Delgado, who needed assistance in every daily activity, Hendrix was able to take care of her needs without any assistance. Unlike the victim in Davis, who was dependent on the assistance of others for her daily and financial activities, Hendrix was able to manage her financial affairs. Whatever exploitative scheme Richardson may allege was perpetrated here during Hendrix's medical treatment, we cannot reach a conclusion different from that of the superior court. Based on the undisputed record, there was insufficient evidence from which a reasonable jury could find that Hendrix's physical impairments, such as they were, rendered her unable to protect herself from abuse, neglect, or exploitation as required by APSA.
Disposition
¶18 We therefore affirm the superior court's judgment.