                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


  MARTHA EQUIHUA, PERSONAL REPRESENTATIVE OF THE ESTATE OF
   JULIO PRECIADO, ON BEHALF OF THE ESTATE OF JULIO PRECIADO,
    AND MARTHA EQUIHUA, PERSONAL REPRESENTATIVE, FOR AND
     ON BEHALF OF JULIO PRECIADO’S STATUTORY BENEFICIARIES
                PURSUANT TO A.R.S. § 12-612(A),
                        Plaintiff/Appellant,

                                 v.

    CARONDELET HEALTH NETWORK, AN ARIZONA CORPORATION,
            DBA CARONDELET ST. MARY’S HOSPITAL,
                     Defendant/Appellee.

                      No. 2 CA-CV 2012-0174
                      Filed February 3, 2014


          Appeal from the Superior Court in Pima County
                          No. C20117435
               The Honorable Kenneth Lee, 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 Donna Y. Oh
Counsel for Plaintiff/Appellant

Mac Ban Law Offices, P.A., Tucson
By Laura V. Mac Ban and Michael L. Linton
Counsel for Defendant/Appellee
        EQUIHUA v. CARONDELET HEALTH NETWORK
                    Opinion of the Court


                             OPINION

Chief Judge Howard authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Miller concurred.


H O W A R D, Chief Judge:

¶1           Martha Equihua, personal representative for the estate
of Julio Preciado, appeals from the trial court’s entry of summary
judgment in favor of Carondelet St. Mary’s Hospital (“St. Mary’s”)
on Equihua’s claim for abuse under the Adult Protective Services
Act (“APSA”) and wrongful death. On appeal, Equihua argues the
trial court erred in finding that her claim did not fall under the
APSA and that her wrongful death claim therefore also failed.
Because we find Equihua properly alleged actionable abuse under
the APSA, we reverse and remand.

                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 non-
moving party. Modular Mining Sys., Inc. v. Jigsaw Technologies, Inc.,
221 Ariz. 515, ¶ 2, 212 P.3d 853, 855 (App. 2009). In December 2009,
Preciado had a stroke and was hospitalized at St. Mary’s for ten
days. The stroke caused dysphagia and put Preciado at an increased
risk of aspirating, which required St. Mary’s to place a feeding tube,
known as a PEG tube, into his stomach. The stroke also left Preciado
dependent on caregivers for his daily needs, including personal
hygiene, dressing, and eating. After being treated by St. Mary’s, he
was transferred to a residential care facility.

¶3           In February 2010, Preciado was taken back to the
emergency room at St. Mary’s and admitted for an abnormal heart
rate and head and neck pain following a fall at the residential care
facility. After he was admitted, St. Mary’s administered tube
feeding to Preciado for approximately 6.5 hours. After his feeding
was complete, Preciado’s nurses noticed his respiratory rate had
risen, his abdomen was distended, the feeding tube had a large


                                  2
        EQUIHUA v. CARONDELET HEALTH NETWORK
                    Opinion of the Court

amount of “residual volume,” and there was a “crackling” sound
coming from Preciado’s lungs. Later that day, Preciado went into
respiratory distress and subsequently died from a pulmonary
hemorrhage secondary to coagulopathy.

¶4            Following Preciado’s death, Equihua filed an APSA and
wrongful death claim against St. Mary’s, Preciado’s residential care
facility, and the nurse and physician assigned to care for Preciado at
that facility. The trial court granted summary judgment to St.
Mary’s, concluding the APSA did not apply to Equihua’s allegations
that St. Mary’s was negligent during Preciado’s tube feeding. The
court additionally ruled that because the wrongful death claim was
predicated on the APSA claim, it necessarily failed as well. The trial
court entered a final judgment pursuant to Rule 54(b), Ariz. R.
Civ. P. We have jurisdiction over Equihua’s appeal pursuant to
A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

                    Adult Protective Services Act

¶5           Equihua argues the trial court erred in granting
summary judgment to St. Mary’s because her claim falls under the
APSA based on the factors enumerated in Estate of McGill ex rel.
McGill v. Albrecht, 203 Ariz. 525, 57 P.3d 384 (2002). 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. See Dayka & Hackett, LLC v. Del
Monte Fresh Produce N.A., 228 Ariz. 533, ¶ 6, 269 P.3d 709, 711-12
(App. 2012). 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.” Ariz. R. Civ. P. 56(a). However, we will reverse a
grant of summary judgment when “the trial court erred in applying
the law.” Eller Media Co. v. City of Tucson, 198 Ariz. 127, ¶ 4, 7 P.3d
136, 139 (App. 2000).

¶6          The APSA “provides a statutory cause of action for
incapacitated or vulnerable adults who are the victims of neglect,
abuse or exploitation.” In re Estate of Wyttenbach, 219 Ariz. 120, ¶ 12,
193 P.3d 814, 817 (App. 2008); see also A.R.S. §§ 46-455, 46-456. The
Act was intended to “protect a class of mostly elderly or mentally ill


                                   3
        EQUIHUA v. CARONDELET HEALTH NETWORK
                    Opinion of the Court

citizens from harm caused by those who have undertaken to give
them the care they cannot provide for themselves” and “increase the
remedies available to and for” those elderly and mentally ill
individuals. Estate of McGill, 203 Ariz. 525, ¶¶ 6, 14, 57 P.3d at
387-88.

¶7            As relevant here, the APSA provides that “[a]
vulnerable adult whose life or health is being or has been
endangered or injured by neglect, abuse or exploitation may file an
action . . . against any person or enterprise that has been employed
to provide care, [or] that has assumed a legal duty to provide care.”
§ 46-455(B). Abuse includes “injury caused by negligent acts or
omissions.” A.R.S. § 46-451(A)(1)(b). A vulnerable adult 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.” § 46-451(A)(9).
The parties do not dispute that Preciado was a vulnerable adult
under the APSA. See § 46-455(B). Additionally, the term “care” is
“generally defined as ‘charge, supervision, management:
responsibility for or attention to safety and wellbeing.’” In re Estate
of Wyatt, 232 Ariz. 506, ¶ 8, 307 P.3d 73, 75 (App. 2013).

¶8            To establish a claim for actionable abuse under the
APSA, the negligent act or acts alleged “(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, 203 Ariz. 525, ¶ 16, 57 P.3d at 389. 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.” Estate of Wyatt, 232 Ariz.
506, ¶ 14, 307 P.3d at 76. In her complaint, Equihua alleged that St.
Mary’s negligently failed to monitor Preciado’s feeding tube. The
McGill factors must therefore be viewed in relation to those specific
acts or omissions. See Estate of McGill, 203 Ariz. 525, ¶ 14, 57 P.3d at
388; Estate of Wyatt, 232 Ariz. 506, ¶ 14, 307 P.3d at 77.

¶9         Here, St. Mary’s was providing care pursuant to § 46-
455(B) while Preciado was its patient by undertaking various

                                   4
        EQUIHUA v. CARONDELET HEALTH NETWORK
                    Opinion of the Court

services, including feeding Preciado via his PEG tube. See Estate of
Wyatt, 232 Ariz. ¶ 8, 307 P.3d at 75-76. The alleged negligence in
administering the tube feeding therefore arose from the caregiver-
recipient relationship and was closely connected to that relationship.
See Estate of McGill, 203 Ariz. 525, ¶ 16, 57 P.3d at 389. Next, 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. See id. Finally, that
service was related to, and necessary because of, the problems that
caused Preciado’s incapacity—his dysphagia and history of
aspiration. See id. Thus, under McGill, Equihua has met the
necessary factors to maintain an action under APSA.

¶10          St. Mary’s, however, argues that courts should look
only to the primary reason the vulnerable adult was admitted when
determining whether a claim properly falls under the APSA. St.
Mary’s contends it only undertook acute care services to treat the
conditions that Preciado was admitted for—head and neck pain and
an irregular heartbeat. Thus, it argues, the act of feeding Preciado
via his PEG tube was only an “incidental accommodation[]” that
does not trigger an APSA claim.

¶11           This court recently addressed whether acute care
hospitals, like St. Mary’s, are exempt from liability under the APSA.
In Estate of Wyatt, 232 Ariz. 506, ¶ 2, 307 P.3d at 75, the appellee-
hospital argued that acute care hospitals, as a class, were exempt
from liability under the APSA. Id. ¶ 9. The hospital first contended
that the term “provide care” in § 46-455(B) was ambiguous and
therefore the legislative intent must be determined. Id. ¶ 7. We,
however, determined the phrase was unambiguous and that a
hospital provides care, or, put another way, acts as a caregiver,
whenever it takes responsibility for a patient’s safety and wellbeing.
Id. ¶¶ 7-8. The hospital next argued that the legislature only
intended the APSA to apply to facilities such as “assisted living
centers and adult care homes, but not to acute care facilities that may
have a vulnerable adult as a patient.” Id. ¶ 9. After examining the
plain language “any . . . enterprise that has been employed to
provide care” and the legislative history of the APSA, we concluded
that acute care hospitals, like St. Mary’s, are not exempt from APSA


                                  5
        EQUIHUA v. CARONDELET HEALTH NETWORK
                    Opinion of the Court

liability based on the fact that they primarily provide “acute care” to
their patients. See id. ¶¶ 9, 14, quoting § 46-455(B).

¶12          Similarly, under the plain meaning of the statute, St.
Mary’s is an enterprise that has been employed to provide care and
did provide care to Preciado. See § 46-455; Estate of Wyatt, 232 Ariz.
506, ¶ 14, 307 P.3d at 77. St. Mary’s argument that undertaking
“acute care” necessarily means a health care provider is not liable
under the APSA is simply an attempt to re-argue Wyatt, and we
decline to revisit the issue.

¶13          St. Mary’s additionally argues that finding Equihua’s
claim falls under the APSA would lead to over-broad liability
because “every person who is ‘incapacitated’ or deemed
‘vulnerable,’ who found his or her way into a hospital’s emergency
department for treatment of an acute injury would have a claim
under APSA for any act of negligence.” It asserts that such a finding
would render the first two prongs of the McGill test meaningless.
But the APSA does not “apply to any and every . . . act of medical
malpractice.” Estate of McGill, 203 Ariz. 525, ¶ 14, 57 P.3d at 388.
The McGill test clearly delineates the necessary factors to maintain
an action under the APSA, and, as discussed above, courts must
look to the specific acts alleged to determine whether the APSA
applies to the claim. See id. ¶ 16; Estate of Wyatt, 232 Ariz. 506, ¶ 14,
307 P.3d at 77. If Equihua alleged St. Mary’s was negligent in its
treatment of Preciado’s head and neck injuries, such negligence
would fall under the MMA, and not the APSA, because it was not
linked to a service undertaken because of Preciado’s incapacity, nor
was it related to the problem that caused his incapacity. See Estate of
McGill, 203 Ariz. 525, ¶¶ 14, 16, 57 P.3d at 388-89.

¶14          Finally, St. Mary’s argues that, under Wyatt, any alleged
negligence related to Preciado’s tube feeding is not actionable under
the APSA because it was only a single act of negligence. See Estate of
Wyatt, 232 Ariz. 506, ¶ 13, 307 P.3d at 77. But our supreme court has
clearly stated, “[W]e can neither automatically limit the negligent act
or omission wording of A.R.S. § 46–451(A)(1) to a series of negligent
acts nor say that a single act of negligence involving an incapacitated
person will never give rise to an APSA action.” Estate of McGill, 203
Ariz. 525, ¶ 16, 57 P.3d at 389. We thus reject St. Mary’s argument

                                   6
        EQUIHUA v. CARONDELET HEALTH NETWORK
                    Opinion of the Court

that it is not liable for a single act of negligence under Wyatt for two
reasons. First, the court of appeals cannot overrule the supreme
court. Ariz. Commercial Diving Servs., Inc. v. Applied Diving Servs.,
Inc., 212 Ariz. 208, ¶ 13, 129 P.3d 497, 501 (App. 2006). Second, the
court in Wyatt was refuting the defendant’s claim that liability
would be overly broad under the court’s interpretation of “care”
under APSA. Estate of Wyatt, 232 Ariz. 506, ¶ 13, 307 P.3d at 76-77. It
did not address the question of whether a single act is enough. Id.

¶15          Equihua additionally argues the trial court erred in
granting summary judgment in favor of St. Mary’s on her wrongful
death claim. In the trial court’s ruling, it simply stated “[t]he
Plaintiff’s wrongful death claim is predicated on the APSA claim. If
the underlying tort claim fails as a matter of law, so, too, does the
wrongful death claim.” Because the trial court erred in finding that
Equihua’s claim did not fall under the APSA, it also erred in
granting summary judgment on the wrongful death claim because
that ruling was predicated on its APSA ruling. St. Mary’s argues
alternatively that we can affirm the trial court’s ruling because a
wrongful death claim cannot be predicated on an APSA claim. We
will uphold the trial court’s ruling if it is legally correct for any
reason. Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9, 130 P.3d 538, 540
(App. 2006).

¶16           St. Mary’s contends that under In re Estate of Winn, 225
Ariz. 275, 237 P.3d 628 (App. 2010), a wrongful death claim can
never be predicated on an APSA claim. In Estate of Winn, the
decedent’s estate filed an APSA action seeking loss of life damages,
but did not file an accompanying wrongful death action.
Id. ¶¶ 1-3, 13. The court found that “[a]ctual damages in an APSA
case may include pre-death pain and suffering,” but did not include
loss of life. Id. ¶¶ 8, 10. Loss of life damages could have been
available, however, had the estate filed a wrongful death action. Id.
¶¶ 13, 15. Thus, Estate of Winn does not stand for the proposition
that APSA claims can never be the basis for a wrongful death claim.
Rather it states only that in order to seek loss of life damages, a
plaintiff must file a wrongful death action in addition to an APSA
claim, which Equihua did here. See id. ¶¶ 13, 15. Accordingly, we
reject St. Mary’s argument.


                                   7
         EQUIHUA v. CARONDELET HEALTH NETWORK
                     Opinion of the Court

¶17         St. Mary’s also argues that Equihua’s wrongful death
claim cannot stand because she “positively disavowed” any claim
under the Medical Malpractice Act (“MMA”). It reasons that any
claim for wrongful death stemming from a health care provider’s
negligence must be predicated upon an MMA claim. St. Mary’s cites
only A.R.S. § 12-561(2), which defines a medical malpractice action,
as support for this contention. Based on this contention, it further
argues that Equihua should not be allowed to amend her complaint
to allege an MMA claim, thus providing a proper basis for the
wrongful death claim, even though Arizona is a notice pleading
state.

¶18          Equihua, however, responds that amendment of her
complaint is unnecessary based on Cornerstone Hosp. of Se. Ariz.,
L.L.C. v. Marner, 231 Ariz. 67, 290 P.3d 460 (App. 2012), which was
decided after the trial court’s decision in this case. Equihua
interprets Cornerstone to support the proposition that her allegations
of medical malpractice were sufficient to assert a medical negligence
claim, and that her claims against St. Mary’s, including the wrongful
death action, should be allowed to proceed as such.

¶19          In Cornerstone, this court found, as a matter of first
impression, that statutes governing expert witness qualifications in
MMA actions apply equally to APSA claims based on medical
negligence. See id. ¶¶ 7, 14. The court concluded the plaintiff in
Cornerstone had alleged medical malpractice in his complaint under
§ 12-561(2), even though the complaint purported to bring an action
solely under the APSA. Id. ¶¶ 2, 21. The fact that claims of medical
negligence and malpractice “involve a vulnerable adult and may be
brought under APSA does not change their nature.” Id. ¶ 21.

¶20           The trial court in this case correctly recognized that
Equihua’s “allegation against [St. Mary’s] clearly sets out a claim for
medical malpractice.” Thus, amendment of the complaint is not the
issue. Cornerstone was not decided until several months after the
trial court’s decision in this case. And the trial court has not had the
opportunity to rule on any issues that may arise based on
Cornerstone. We will not rule on an issue not properly presented to
the trial court. Airfreight Exp. Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz.
103, ¶ 17, 158 P.3d 232, 238 (App. 2007) (trial court must be given

                                     8
       EQUIHUA v. CARONDELET HEALTH NETWORK
                   Opinion of the Court

opportunity to address issues on merits before court of appeals can
review). Because the trial court first must have the opportunity to
rule on this issue, we reject St. Mary’s argument that Equihua did
not properly allege an MMA action.

                           Disposition

¶21        For the foregoing reasons, we reverse the order granting
summary judgment in favor of St. Mary’s on Equihua’s APSA and
wrongful death claims and remand for further proceedings.




                                9
