Court: Hospitals can be sued for elder abuse

2014-06-30T16:45:00Z 2014-06-30T20:28:00Z Court: Hospitals can be sued for elder abuseBy Howard Fischer Capitol Media Services Arizona Daily Star

PHOENIX — The Arizona Supreme Court ruled Monday hospitals can be sued under special laws adopted to protect vulnerable adults, saying the elderly can be abused anywhere.

In a unanimous decision, the justices rejected arguments by attorneys for hospitals that the law was intended only to cover only places like nursing homes and similar facilities.

Chief Justice Rebecca White Berch said there is nothing in the wording of the statute to support that claim.

Berch said adopting the view of the hospitals “would thwart the legislature’s goal of protecting vulnerable adults” in adopting the 1089 Adult Protective Services Act.

She said, for example, someone is as subject to bedsores from not being turned regularly in a hospital or a nursing home.

“Nothing in APSA indicates legislative intent to protect vulnerable adults from abuse, neglect or exploitation only when they are housed in particular facilities.”

Shannon Clark, an attorney for one of the survivor families in one of the two cases at issue, said the ruling is very important.

“It really does confirm that this is supposed to have a broad, remedial effect,” he said.

But the ruling also has immediate financial effects: It means that hospitals found negligent under the law could end up facing larger jury verdicts.

Monday’s ruling addresses two separate cases that now may go back to trial.

One was brought by the survivors of Helen Wyatt, who was a patient at Phoenix Baptist Hospital, where she received 350 medications and medical interventions from doctors, nurses, technicians and therapists.

The other suit was brought by survivors of Karl Kuhfuss Jr. who underwent three surgeries at John C. Lincoln Hospital and got postsurgical care there.

In both situations, the survivors contend the care their family members received violated the Adult Protective Services Act. But in both cases, trial judges threw out those claims, saying hospitals are exempt.

Among the contentions of the hospitals was that the law specifically applies only to facilities that “provide care” to vulnerable adults. They argued that the hospital “provide treatment,” which is something different.

Berch found the law’s wording applies to all facilities that “provide care,” saying its ordinary meaning includes supervision, management and “responsibility for or attention to safety and well-being.” And that, she said, clearly includes treatment by the hospitals.

Clark said cases like these can be brought as normal medical negligence and malpractice lawsuits. And such claims, whether brought as malpractice or abuse, would cover things like medical expenses.

Where it’s different, Clark said, is if the patient dies.

“The pain and suffering that the victim endured as a result of abuse, neglect or exploitation would survive the victim’s death” under an abuse complaint, Clark explained. “Under a traditional negligence case, if someone had pain and suffering before they passed away, the pain and suffering component (of the lawsuit) would be extinguished by the patient’s death.”

Clark also said that a ruling to the contrary could have had broader implications, potentially exempting hospitals from having to file reports of abuse and neglect.

Greg Vigdor, chief executive officer of the Arizona Hospital and Healthcare Association, said he was still studying the ruling. But he said there are impacts on his members.

“Any time the medical malpractice area opens up we get concerned because it’s such a big cost issue that everyone gets to pay,” he said.

Vigdor said it may be appropriate to ask the Legislature to revisit the abuse law, though he said there are no specific plans at this point to seek an outright exemption.

Monday’s ruling does not mean either hospital is guilty. Instead, it simply gives the families a chance to make their case before a trial court.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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