The settlement signed by Dr. Roberta Luskin-Hawk, President/CEO of the hospital, and Atty. James Burton on behalf of Public Guardian Robert F. Harris means that the hospital is denying charges that it breached its duty of care to Davies and violated the Elder Abuse Act. At the same time, the hospital is not admitting any liability.
The settlement also covers release forever from liability of its hospital employees namely, Charles Gutfeld, Filipino American nurse Cindy Rubio, Sam Ayeni and Rochella Trimble.
Instead of Rubio alerting any of St. Joseph Hospital personnel or her concerns or to report Pasamba to protective services, she turned to the former caregiver of Davies, Lenny Hurley, to say that Pasamba was exploiting Davies’ financially, adding she “feared she may be in trouble with St. Joseph Hospital.”
Because an Illinois law requires a licensed nurse to report abuse, neglect or financial exploitation of elder abuse to authorities or face criminal charges for her failure to report, Rubio was initially named in a petition to issue a citation to recover assets filed before the Circuit Court of Cook County’s Probate Division in Chicago.
The settlement, however, does not apply to Pasamba, the hospital’s certified nursing assistant (CNA), nor others named in the petition for a Citation to Recover Assets filed by Public Guardian against Pasamba and her husband, Edgardo Pasamba, Pasamba’s sister, Jocelyn Vargas Baker, and Pasamba’s two adult children, Dennis Pasamba and Donabel Capon, and Filipino American lawyer, Alfonso S. Bascos of the Filipino American Council of Greater Chicago (FACC) based in Chicago’s north side.
The copy of the agreement, obtained by this reporter from the clerk of court, also said the Public Guardian reserves the right to collect any and all assets from Pasamba and other defendants.
St. Joseph Hospital said it merely wants to “settle any action, cause of action or demand they may have, and both Parties desire to settle their disputed claims, so as to avoid the expense and uncertainty of further action.”
Judge Lynne Kawamoto, who retired recently from the Circuit Court of Cook County’s Probate Court, denied last October the twin motions of St. Joseph Hospital to dismiss charges of breach of duty of care and failure to report elder abuse of its 94-year-old patient, Davies, after he lost nearly 1 million of his savings from Ms. Pasamba.
DID NOT CONCEAL, CONVERT OR EMBEZZLE
The hospital lawyer argued the Public Guardian failed to allege nor has evidence that St. Joseph Hospital “concealed, converted, or embezzled the assets of Mr. Davies.”
Carmelita Pasamba was hired in January 2008 by Davies as his “in-home” caregiver after Mr. Davies was discharged from St. Joseph Hospital due to hip pain that kept him from walking normally. Pasamba as a CNA worked on the St. Joseph Hospital floor where Davies was confined and cared for him.
During the next three years, Pasamba and her family provided care for Davies and also took control of all his assets. When Judge Kawamoto asked hospital’s lawyer, Anthony D. Danhelka, if the checks could have been issued “between dates during the first and second admissions” of Davies to the hospital, Danhelka answered, “some of them did.” But Danhelka argued that “it does not mean that St. Joseph owed a duty to protect Mr. Davies from these financial transactions made by Ms. Pasamba.”
When Judge Kawamoto asked again Danhelka, “What duty does hospital owe to its patient to protect them from harm? Do these include financial harm from its employees?”
With these questions, Danhelka, answered, “yes,” leading Judge Kawamoto to deny the two motions of the hospital.
Meanwhile, the new judge handling the case, Circuit Judge Daniel B. Malone, will heard oral argument on Friday, Sept. 20, on the motion for reconsideration to Judge Malone’s decision to stay the citation action against Pasamba and her co-defendants pending completion of the criminal case filed against Pasamba, her sister, Jocelyn Baker, and her husband, Edgardo Pasamba. They are facing felony charges of financial exploitation of a senior citizen pending before Judge Michael Claps of the Cook County Criminal Courthouse at 26th and California at Chicago’s south west side.
On the other hand, Bascos has two more weeks to respond to a petition for civil contempt filed by the Public Guardian for his failure to answer fully the interrogatories regarding his personal finances, “Mr. Bascos merely did provide some information, but not all that I requested,” according to Burton.
The oral argument on the civil contempt on Bascos will be held on Oct. 22.
And meanwhile, the hearing of the disbarment case filed against Bascos is slated on January 14, 2014 at the Illinois Attorney Registration and Disciplinary Commission in Chicago.
Bascos was charged among others with professional negligence (malpractice) for preparing the estate documents of Davies for Pasamba, including a power of attorney, a pour-over will and a trust. After Carmelita Pasamba got hold of the power of attorney (POA), she was able to write a check to herself for $30,000 from the victim’s bank account. A month later, on June 16, 2008, she gave herself another $25,000. She called these transactions “loans” and used the money to remodel her kitchen and basement.
On Oct. 10, 2008, Carmelita acted as POA for the sale of the victim’s condominium, located in Chicago, which the victim was to receive $189,010.70. Pasamba paid herself $50,000 cash out of the proceeds, which she called “bonus.”
From Sept. 1, 2008 to July 6, 2011, Pasamba paid herself a salary of $5,500 per month for her duties as POA, for a total of $170,000.
Bascos has denied any wrongdoing.