Arizona Nursing Home Abuse and Elder Abuse Cases
Protecting Incapacitated and Vulnerable Adults
Adult Protective Services Act
When it comes to incapacitated or vulnerable adults, Arizona laws largely focuses on the Adult Protective Services Act.
As our population ages the elderly often become victims of nursing home abuse and often by those who are in a position of trust or are hired to care for them such as living in a nursing home. Arizona law provides criminal and civil penalties for those who abuse, neglect or exploit the elderly and vulnerable because of their physical or mental impairment.
Statute of Limitations
In Arizona if you are going to file a claim under the Adult Protective Services Act (APSA), you generally have 2 years to initiate a civil proceeding. This means that a lawsuit for the nursing home abuse or other elder abuse cases must be filed within 2 years after the actual discovery of the cause of action. Actual discovery is defined as reasonably knowing or with reasonable diligence one should have known the facts underlying the claim. Once this occurs the 2-year time limit begins to run. A plaintiff does not need to know all the facts regarding the case and is only required to possess a minimum knowledge to identify that a wrong has actually occurred.
Arizona has stated several conditions that toll the statue limitations. These includes if the person is of ”unsound mind” which means that person is unable to manage their daily affairs or understand their legal rights or legal liabilities. This can also include people with mental illness, mental deficiency, a dementia patient or others. Whether a person is of unsound mind is generally a jury question. Also, under ARS § 12–502, if the person with the disability has been appointed a conservator or guardian to care for them then the statute of limitations is tolled. The intent is to protect the disabled from the running of the statute of limitations despite the fact that they may have a guardian or conservator who could assert their rights.
Who is protected by the APSA?
There are three protected parties under Arizona’s Adult Protective Services Act which include (1) incapacitated adults (2) vulnerable adults or (3) the estate of either an incapacitated or vulnerable adult.
An incapacitated person is a person who is impaired due to mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that they lack sufficient understanding or capacity to make or communicate responsible decisions (ARS § 14-5101).
A vulnerable adult as is a person who is 18 years of age or older and unable to protect themselves from abuse neglect or exploitation by others because of their impairment. This also includes incapacitated persons.
Defining Neglect, Abuse, Unreasonable Confinement, and Exploitation
Neglect is defined as a pattern of conduct without the person’s informed consent resulting in the deprivation of food, water, medication, medical services, shelter, cooling, heating or other services necessary to maintain minimum physical or mental health (ARS § 46–451). This commonly occurs in end-of-life scenarios where basic necessities might be withheld.
Abuse is defined as an intentional infliction of physical harm or injury caused by negligent acts or omissions and includes sexual abuse/assault.
Unreasonable Confinement occurred ‘s when a protected person is confined unreasonably through either medication or physical restraints.
Exploitation is the illegal or improper use of a vulnerable adult (or their resources) for another’s profit or advantage. This usually happens when a person who is in a position of trust to the vulnerable adult takes advantage of them or deceptively takes control, title, use or management of the vulnerable adult’s property with the intent to permanently deprive them of that property. A nursing home worker who steals the property of an elderly patient would fall into this category.
Parties in the Action
Claims may be brought by the protected party, their representative, or the State and may include actions taken against any person or entity hired to care for the individual or who has a legal duty to provide care, such as someone appointed by a court order. This not only includes those directly responsible for the care of an individual but also may include physicians, assistants, administrators, directors, etc… or others who were employed/retained by the facility at the time of the neglect or abuse. The State and public entities are exempt from liability under APSA.
Remedies and Damages
Under ARS § 46–455 remedies and damages include ordering a person to divest himself from any enterprise, imposing reasonable restrictions on that person or enterprise, issuing permanent injunctions against the person engaging in the activity, ordering dissolution or reorganization of any enterprise, payment of actual and consequential damages (including pain and suffering), punitive damages, and payment of costs and expenses of the investigation prosecution of the conduct incurred by the State or County. Damages do not include the right to recover attorney’s fees. Generally because of the situation of the incapacitated or vulnerable adult the majority of the damages usually come in the form of pain and suffering. This is because vulnerable adults generally do not work and medical treatment will be covered by Medicare, thus they will likely not have many other forms of damages.
Usually in cases such as these the family members will also file a wrongful death claim to recover for their loss of consortium. If you or someone you know has suffered nursing home abuse or elder law abuse, contact our office today for your free consultation.