                           IN THE
            ARIZONA COURT OF APPEALS
                        DIVISION TWO


 MARIKA DELGADO, PERSONAL REPRESENTATIVE OF THE ESTATE OF
   SANDRA SHAW, ON BEHALF OF THE ESTATE OF SANDRA SHAW,
DECEASED; AND MARIKA DELGADO, PERSONAL REPRESENTATIVE, FOR
  AND ON BEHALF OF SANDRA SHAW’S STATUTORY BENEFICIARIES
       AND/OR ESTATE PURSUANT TO A.R.S. § 12-612(A),
                     Plaintiff/Appellant,

                             v.

 MANOR CARE OF TUCSON, AZ, LLC, AN ARIZONA LIMITED LIABILITY
       COMPANY, DBA MANOR CARE HEALTH SERVICES, INC. AKA
   MANORCARE HEALTH SERVICES, LLC; HCR MANORCARE, LLC, A
    DELAWARE LIMITED LIABILITY COMPANY; MANOR CARE, INC., A
  DELAWARE CORPORATION; HCR MANORCARE, INC., A DELAWARE
  CORPORATION; HCR IV HEALTHCARE, LLC, A DELAWARE LIMITED
    LIABILITY COMPANY; HCR III HEALTHCARE, LLC, A DELAWARE
LIMITED LIABILITY COMPANY; HCR II HEALTHCARE, LLC, A DELAWARE
 LIMITED LIABILITY COMPANY; HCR HEALTHCARE, LLC, A DELAWARE
      LIMITED LIABILITY COMPANY; HCRMC OPERATIONS, LLC, A
     DELAWARE LIMITED LIABILITY COMPANY; HCR MANORCARE
   OPERATIONS II, LLC, A DELAWARE LIMITED LIABILITY COMPANY;
HEARTLAND EMPLOYMENT SERVICES, LLC, AN OHIO LIMITED LIABILITY
    COMPANY; IPC THE HOSPITALIST COMPANY INC., A DELAWARE
        CORPORATION; WILLIAM AMOUREUX, ADMINISTRATOR;
                   AND GORDON J. CUZNER, M.D.,
                         Defendants/Appellees.

                   No. 2 CA-CV 2015-0187
                     Filed June __, 2016
       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court


          Appeal from the Superior Court in Pima County
                          No. C20136560
             The Honorable Richard S. Fields, Judge

                  REVERSED AND REMANDED


                             COUNSEL

Law Office of Scott E. Boehm, P.C., Phoenix
By Scott E. Boehm

Wilkes & McHugh, P.A., Phoenix
By Melanie L. Bossie and Mary Ellen Spiece
Co-Counsel for Plaintiff/Appellant

Gust Rosenfeld, P.L.C., Tucson
By James W. Kaucher and Danielle J. K. Constant
Counsel for Defendants/Appellees

Cavett & Fulton, PC, Tucson
By Anne M. Fulton-Cavett
Counsel for Defendants/Appellees Gordon J. Cuzner, M.D. and
IPC The Hospitalist Company, Inc.



                             OPINION

Presiding Judge Howard authored the opinion of the Court, in
which Judge Espinosa and Judge Staring concurred.


H O W A R D, Presiding Judge:

¶1          Marika Delgado, in her personal capacity and as
representative of the estate of her sister, Sandra Shaw, appeals from



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          DELGADO v. MANOR CARE HEALTH SERVS., INC.
                      Opinion of the Court

the trial court’s entry of summary judgment in favor of defendants1
(collectively Manor Care) on Delgado’s claim for abuse or neglect
under the Arizona Adult Protective Services Act (APSA), A.R.S.
§§ 46-451 through 46-459. On appeal, Delgado argues the court
erred in finding that the actions that allegedly caused Shaw’s death
were not related to her incapacity2 as required by APSA and Estate of



      1  Delgado brought this action against fourteen named
defendants, including a variety of LLCs that allegedly own Manor
Care; an alleged individual administrator of Manor Care; Shaw’s
doctor at Manor Care, Dr. Gordon J. Cuzner; and the company that
employs him. Cuzner asserted at oral argument that his situation
should be evaluated separately from that of the other defendants.
But in his Answering Brief he simply “join[ed] in the entirety of the
Legal Arguments” of Manor Care without raising any arguments
specific to himself. Arguments raised for the first time at oral
argument are waived. Mitchell v. Gamble, 207 Ariz. 364, ¶ 16, 86 P.3d
944, 949-50 (App. 2004). Because they have not effectively argued
otherwise, and because Cuzner and his employer have joined Manor
Care’s arguments, we treat all of the defendants as similarly situated
for the purposes of Delgado’s appeal from summary judgment.
      2 At the time Estate of McGill ex rel. McGill v. Albrecht, was
decided, APSA applied to “incapacitated or vulnerable adult[s].”
203 Ariz. 525, ¶ 5, 57 P.3d 384, 386 (2002); see also 1998 Ariz. Sess.
Laws, ch. 161, § 8. The current APSA has been amended to apply
only to “vulnerable adults,” A.R.S. § 46-455, but that term is defined
as “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. Vulnerable
adult includes an incapacitated person as defined in [A.R.S.] § 14-
5101,” A.R.S. § 46-451(A)(9). Thus, although the language of the
statute was changed, it does not appear that the amendment
represented a substantive change in the scope of APSA. The court in
McGill noted “our use of the term ‘incapacitated’ includes the
statutory definition of both incapacitated and vulnerable adults.”
McGill, 203 Ariz. 525, n.3, 57 P.3d at 387 n.3. Because whether Shaw
was incapacitated or more generally vulnerable is not at issue before

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       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court

McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 57 P.3d 384 (2002).
Because we cannot say, as a matter of law, that the alleged
negligence was unrelated to her incapacity, we reverse the judgment
of the trial court and remand for further proceedings.

                Factual and Procedural Background

¶2           “On appeal from summary judgment, we view the facts
and all justifiable inferences in the light most favorable to the
nonmoving party.” Equihua v. Carondelet Health Network, 235 Ariz.
504, ¶ 2, 334 P.3d 194, 195-96 (App. 2014). In March 2012, Shaw,
who was seventy-four years old at the time, was discharged from an
acute care hospital and entered a Manor Care facility. At the time of
her discharge, she had been diagnosed with incontinence, a urinary
tract infection (UTI), chronic kidney disease, recent acute renal
failure, anemia of chronic kidney disease, a history of coronary
artery disease, hypertension, a history of an atrophic kidney, kidney
stones, debilitation, a meningioma,3 suicidal ideation, and delirium
related to depression. Shaw initially presented as “alert” but was
only oriented to “place” and not “time,” “person,” or “situation.”

¶3           As of April 9, Shaw was continuing to take antibiotics
for her UTI, was not complaining of any particular pain, and was
sleeping at long intervals. Around this time, Shaw had a wound on
her sacrum. As of April 13, she was still on antibiotics for her UTI,
and by April 16, she was able to move, with assistance, from her bed
to a wheelchair. She was scheduled to be released from the facility
on May 2, when Delgado returned from a trip to Europe.

¶4          By April 21, Shaw presented with “some confusion” but
“she [understood] and [could] make her needs known.” By April 24,
she began to refuse to get out of bed, and on April 27 began to
reduce “oral intake.” On April 30, Shaw presented as “[v]ery
confused” and began “[t]rying to get up at intervals.” Later that

us, we treat the two terms interchangeably for the purposes of this
opinion.
      3Shaw had successfully undergone surgery to have the tumor
removed before she was admitted to Manor Care.


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       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court

day, Shaw was still “confused and lethargic” and “refused all
med[icines] and meals.”

¶5           Manor Care staff ordered lab tests and a urinalysis, and
obtained a urine sample which was “very cloudy and milky
looking.” Cuzner, Shaw’s treating physician, reviewed the test
results and ordered an immediate chest x-ray. In the progress note
associated with his assessment of Shaw, Cuzner noted “early sepsis”
as the diagnosis. Later that day, Shaw was “[a]lert,” and “[v]erbally
responsive,” but had a “very poor appetite.” After receiving the
results of the x-ray, Cuzner issued no new orders. Neither Cuzner
nor Manor Care staff provided any further medical attention to
Shaw.

¶6             On May 1, Shaw was transferred out of the “Medicare
or . . . rehab wing” to the “long-term care” wing. At 11:40 a.m. Shaw
presented as “lethargic” and “confused and disoriented,” and
Manor Care staff noted that she “[had] not eaten or taken fluids for
[at] least 2 days.” Nurse Jeannette Picozzi notified the Assistant
Director of Nursing of Shaw’s condition at that time, but no further
treatment was provided. By 3:05 p.m. that day, Shaw had died, and
Cuzner noted the immediate cause of death as “sepsis” which was
“due to or as a consequence of” a “meningioma,” “kidney stones,”
and “coronary artery disease.”

¶7          In November 2013, Delgado filed an action against
Manor Care alleging medical malpractice, wrongful death, and
abuse or neglect under APSA. After discovery, Manor Care moved
for summary judgment, arguing the APSA claim should be
dismissed because “the alleged negligence occurred in connection
with the diagnosis and treatment of an acute medical condition.”4

¶8           The trial court granted summary judgment, ruling that
“the sepsis is not related to that which caused the incapacity” and


      4The motion for summary judgment also sought dismissal of
Delgado’s claims for wrongful death and pain and suffering
associated with her medical malpractice claim. These claims were
dismissed and are not at issue in this appeal.


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       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court

finding that “while there may arguably be a medical malpractice
case, there is no evidence of neglect or abuse.” The court explained
that “[a]ttention and care were well-documented, although not
always successful in delivery.”        The court entered summary
judgment, and this appeal followed. We have jurisdiction pursuant
to A.R.S. §§ 12-120.21 and 12-2101(A)(1).

                           Claim Preclusion

¶9          As a preliminary matter, Manor Care argues the
dismissal of the medical malpractice and wrongful death claims
below “bars any claim based on negligence” due to the doctrine of
claim preclusion.5 We review questions of claim preclusion de novo.
Phx. Newspapers, Inc. v. Dep’t of Corrs., 188 Ariz. 237, 240, 934 P.2d
801, 804 (App. 1997).

¶10            Claim preclusion dictates that a “judgment on the
merits in a prior suit involving the same parties or their privies bars
a second suit based on the same cause of action.” Kadish v. Ariz.
State Land Dep’t, 177 Ariz. 322, 327, 868 P.2d 335, 340 (App. 1993).
Conversely, claim preclusion does not apply when “the alleged prior
decision . . . was in the same action, not in a prior action.” Id. Thus,
claim preclusion does not apply here, as the APSA claim at issue in
this appeal and the medical malpractice and wrongful death claims
are part of the same action currently before us.6 See id.

¶11       In their notice of supplemental authority and at oral
argument, Manor Care cited Torres v. Kennecott Copper Corp.,

      5We   use the more modern term “claim preclusion” over the
older term “res judicata” in this opinion. The two terms are
synonymous. Howell v. Hodap, 221 Ariz. 543, n.7, 212 P.3d 881, 884
n.7 (App. 2009); see also Circle K Corp. v. Indus. Comm’n, 179 Ariz. 422,
425-26, 880 P.2d 642, 645-46 (App. 1993).
      6We  further note that the same analysis would apply to any
arguments regarding issue preclusion, to the extent that Manor Care
makes such an argument. See Circle K Corp., 179 Ariz. at 425,
880 P.2d at 645 (“‘Issue preclusion’ occurs when the issue to be
litigated was actually litigated in a prior proceeding.”).


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       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court

15 Ariz. App. 272, 488 P.2d 477 (1971) and Law v. Verde Valley
Med. Ctr., 217 Ariz. 92, 170 P.3d 701 (App. 2007) for the principle that
claim preclusion can apply to bar litigation of claims “in the same
action.” Both of these cases dealt with a situation where one party
was only potentially liable for a claim by virtue of the other party’s
liability. Torres, 15 Ariz. App. at 274, 488 P.2d at 479 (holding that
where an employer’s liability rested “solely on the negligent acts of
his [employee], a judgment in favor of the servant relieves the
master of any liability”); Law, 217 Ariz. 92, ¶¶ 9-10, 170 P.3d at
704-05 (recognizing the principle that in a vicarious liability suit, a
judgment for the agent is a judgment for the principal). In both
cases, the court precluded claims against employers or principals
once claims against their employees or agents were dismissed with
prejudice. Torres, 15 Ariz. App. at 275, 488 P.2d at 480; Law,
217 Ariz. 92, ¶¶ 16-17, 170 P.3d at 705-06. These cases are thus
inapplicable to the case before us.

                     McGill Factor Application

¶12          Delgado contends the trial court erroneously granted
summary judgment because she succeeded in presenting a prima
facie claim for abuse or neglect under APSA. “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, 235 Ariz. 504, ¶ 5,
334 P.3d at 196. “The trial court should grant summary judgment
when ‘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.’” Id., quoting Ariz. R. Civ. P. 56(a). “[W]e will reverse
a grant of summary judgment when ‘the trial court erred in
applying the law.’” Id., quoting Eller Media Co. v. City of Tucson,
198 Ariz. 127, ¶ 4, 7 P.3d 136, 139 (App. 2000).

¶13          In order to state a successful claim for abuse or neglect
under APSA, a plaintiff must show that the alleged victim was a
“vulnerable adult” who was “injured by neglect[ or] abuse” by “any
person or enterprise that has been employed to provide care . . . to
such vulnerable adult.” A.R.S. § 46-455(B); see also Equihua, 235 Ariz.
504, ¶ 7, 334 P.3d at 196. As it pertains here, “‘[a]buse’ means: . . .
[i]njury caused by negligent acts or omissions,” while “‘[n]eglect’

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       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court

means a pattern of conduct without the person’s informed consent
resulting in deprivation of food, water, medication, medical services
. . . or other services necessary to maintain minimum physical or
mental health.” A.R.S. § 46-451(A)(1)(b), (6).

¶14         Our supreme court has ruled that a single alleged act of
negligence can constitute actionable abuse under APSA so long as
the following requirements are met:

             the negligent act or acts (1) must arise from
             the relationship of caregiver and recipient,
             (2) must be closely connected to that
             relationship, (3) must be linked to the
             service the caregiver undertook because of
             the recipient’s incapacity, and (4) must be
             related to the problem or problems that
             caused the incapacity.

Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, ¶ 16, 57 P.3d
384, 389 (2002). “In determining whether the APSA applies to a
claim of negligence, ‘[t]he key fact is . . . the nature of the act and its
connection to the relationship between the caregiver and the
recipient.’” Equihua, 235 Ariz. 504, ¶ 8, 334 P.3d at 197, quoting
In re Estate of Wyatt, 232 Ariz. 506, ¶ 14, 307 P.3d 73, 76 (App. 2014),
vacated on other grounds by 235 Ariz. 138, 329 P.3d 1040 (2014).

¶15          APSA was not intended to apply to negligence that
leads to injury that “can afflict anyone, not just the incapacitated”
that is “completely separate from the unique role of caregiver and
incapacitated recipient,” such as a surgeon negligently failing “to
remove an instrument or discover a perforation in the viscera.”
McGill, 203 Ariz. 525, ¶ 14, 57 P.3d at 388-89. Instead, APSA applies
to situations in which the alleged negligence “is directly related to
the caregiver’s responsibility in caring for the incapacitated patient
and is one from which that patient may not be able to protect him or
herself” such as a “nurse . . . plac[ing] an incapacitated person in a
bathtub, turn[ing] on the water at too high a temperature, and
[being] distracted for a moment.” Id. ¶ 15. Because in her complaint
Delgado alleged Manor Care negligently had failed to furnish
adequate medical care, “[t]he McGill factors must therefore be


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       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court

viewed in relation to those specific . . . omissions.”        Equihua,
235 Ariz. 504, ¶ 8, 334 P.3d at 197.

¶16           Both parties rely on Equihua to support their contentions
regarding summary judgment.             In Equihua, the defendant,
Carondelet St. Mary’s Hospital (St. Mary’s), had undertaken care of
decedent, Julio Preciado, because of “head and neck pain following
a fall.” Id. ¶ 3. Before this, Preciado had been incapacitated by a
stroke, putting him “at an increased risk of aspirating, which
required St. Mary’s to place a feeding tube . . . into his stomach.”
Id. ¶¶ 2-3. The stroke also left Preciado “dependent on caregivers
for his daily needs.”7 Id. ¶ 2. While admitted at St. Mary’s, Preciado
died due to complications allegedly related to the administration of
the tube feeding. Id. ¶ 9.

¶17           Martha Equihua, the representative of Preciado’s estate,
brought, inter alia, a claim under APSA for abuse or neglect, but the
trial court granted summary judgment against her, “concluding the
APSA did not apply to Equihua’s allegations that St. Mary’s was
negligent during Preciado’s tube feeding.” Id. ¶ 4. This court
reversed, ruling that Equihua had made a showing sufficient as to
the McGill factors to survive summary judgment. Id. ¶ 9. We
concluded “the allegedly negligent tube feeding was not merely
linked but was the precise service St. Mary’s undertook because
Preciado was incapacitated and could not feed himself,” and the
tube feeding “was related to, and necessary because of, the problems
that caused Preciado’s incapacity—his dysphagia and history of
aspiration.” Id.

¶18          Thus, we clarified the kinds of injuries that could
support an APSA claim. Id. ¶ 13. We distinguished the treatment of
Preciado’s head and neck injuries from the care he required as a
result of his stroke and dysphagia. Id. The treatment of his head
and neck constituted treatment of an acute medical condition
unrelated to the problem which caused his incapacity, while care
related to his dysphagia and history of aspiration was “related to,

      7The parties did not dispute that Preciado was a vulnerable
adult under the APSA. Equihua, 235 Ariz. 504, ¶ 7, 334 P.3d at 196.


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       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court

and necessary because of, the problem that caused” his incapacity.
Id. ¶¶ 9, 13. Thus, Equihua stands for the proposition that, under
McGill, an APSA claim may only be maintained when the allegedly
negligent acts affected the victim by virtue of their incapacity.
Id. ¶ 13.

¶19          Because our review is de novo, we now turn to
“whether the trial court correctly applied [APSA].” Id. ¶ 5. On
appeal, the parties do not dispute that Shaw was a vulnerable adult,
and the trial court found she was vulnerable under APSA. The
parties also do not meaningfully dispute on appeal that Manor Care
was employed to provide care. “‘[C]are’ is ‘generally defined as
charge, supervision, management: responsibility for or attention to
safety and wellbeing.’” Id. ¶ 7, quoting Estate of Wyatt, 232 Ariz. 506,
¶ 8, 307 P.3d at 75. The sole issue on appeal, pursuant to the fourth
McGill factor,8 is whether Manor Care’s alleged failure to provide
medical services was related to the problems that caused Shaw’s
incapacity.

¶20         Manor Care stated that the cause of death is in dispute,9
but the death certificate attributes her death to sepsis, which was
“due to or as a consequence of” a “meningioma,” “kidney stones,”


      8Although    Manor Care argues that Delgado could not satisfy
the third McGill factor, this argument was not presented in their
motion for summary judgment, or discussed at the hearing on
summary judgment below. As a result, the trial court specifically
found Delgado had failed to meet the fourth McGill factor.
Furthermore, Manor Care briefly discusses the third McGill factor
and does not meaningfully distinguish it from the fourth factor in its
analysis. Thus, this argument is waived. See Harris v. Cochise Health
Sys., 215 Ariz. 344, ¶ 17, 160 P.3d 223, 228 (App. 2007) (appellant’s
failure to raise issue before trial court waives on appeal); Polanco v.
Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007)
(appellant’s failure to develop and support waives issue on appeal).
      9We   note that summary judgment is only proper when there
are no genuine issues of material fact. Equihua, 235 Ariz. 504, ¶ 5,
334 P.3d at 196.


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       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court

and “coronary artery disease” and Cuzner had previously
diagnosed sepsis before her death. Because we view the facts in the
light most favorable to Delgado, the nonmoving party, Equihua,
235 Ariz. 504, ¶ 2, 334 P.3d at 195-96, for the purposes of the appeal,
we proceed with our analysis assuming, as Delgado contends, that
Shaw died of sepsis resulting from multiple medical issues.

¶21          Manor Care asserts that Shaw’s cause of death was an
acute medical problem that was not related to Shaw’s incapacity.
Delgado’s theory on the APSA claim is that Shaw’s death was
caused by Manor Care’s alleged failure to provide adequate medical
care for Shaw once she presented with a UTI and subsequently
sepsis. Delgado specifically argues that, but for her incapacity,
“[Shaw] could have sought medical treatment for herself when the
infection occurred.”

¶22         In support of her theory, Delgado presented affidavits
from two experts: one from a nursing expert who addressed the
standard of care for Manor Care staff, and the other a doctor who
explained the standard of care for Cuzner.10 Both experts averred
that Manor Care and Cuzner had been negligent in failing to seek or
provide additional medical care for Shaw.

¶23           The nursing expert averred that Shaw had required
significant daily care, including “infection control/prevention.” She
further averred that one of Manor Care’s duties as a care facility was
to seek medical attention for its residents. And she opined that
Manor Care had provided negligently substandard care when it
failed to follow up with a medical professional as Shaw’s condition

      10 In its answering brief, Manor Care correctly asserts that,
under Florez v. Sargeant, 185 Ariz. 521, 526-27, 917 P.2d 250, 255-56
(1996), a court may grant summary judgment in the face of an
expert’s affidavit if that affidavit is “conclusory.” Manor Care then
argues the trial court properly rejected the affidavit of the doctor,
Leonard Williams, M.D., on the basis it was flawed in such a way.
But there is no evidence the trial court rejected Williams’s affidavit
in such a manner, and even if it had, summary judgment would still
not have been proper for the reasons presented here.


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       DELGADO v. MANOR CARE HEALTH SERVS., INC.
                   Opinion of the Court

worsened. Additionally, a staff member at Manor Care testified in a
deposition that, had she been made aware of Shaw’s condition, she
would have wanted to secure treatment for Shaw. This evidence
could allow a factfinder to conclude that Manor Care had committed
abuse under APSA by failing to seek medical attention for Shaw
exactly because she was incapacitated.

¶24           Furthermore, the doctor’s affidavit Delgado presented
also provided an expert medical opinion that Cuzner had been
negligent in failing to seek further treatment for Shaw. The doctor
also averred that Shaw was incapacitated and was dependent upon
nursing staff for the provision of medical attention, thereby creating
a triable issue of fact as to whether the alleged abuse was related to
her incapacity.

¶25         Thus, Delgado presented triable issues of fact as to
whether Manor Care’s alleged failure to seek further medical care
for Shaw was “related to the problem or problems that caused
[Shaw’s] incapacity.” See McGill, 203 Ariz. 525, ¶ 16, 57 P.3d at 389.
Because we cannot say that Manor Care’s allegedly negligent actions
were unrelated to the problems that caused her incapacity, the trial
court erred by granting summary judgment in favor of Manor
Care.11

                            Disposition

¶26           Based on the foregoing, we reverse the judgment of the
trial court and remand for further proceedings.




      11Manor  Care also argues Delgado failed to establish a claim
for “neglect” under APSA. Because establishing such a claim is
unnecessary to render the grant of summary judgment improper, it
is unnecessary to address this argument further.


                                 12
