CHICAGO (jGLi) – The St. Joseph Hospital in Chicago, Illinois’ near north side has asked the Circuit Court of Cook County to dismiss the petition for issuance of a citation to recover assets against the hospital because Robert F. Harris, the Cook County Public Guardian, “has not alleged, and has no evidence that, Saint Joseph Hospital concealed, converted embezzled, or has possession” of any of the nearly one-million dollars assets of elderly and disabled 94-year-old Marshall F. Davies that was allegedly dissipated by Davies’ caregiver, Carmelita Pasamba.
An oral argument of the amended motion to dismiss filed by St. Joseph Hospital would be heard on Thursday, Oct. 4, at 2 p.m. before Judge Lynne Kawamoto.
In seeking the dismissal of the case, Patricia S. Kocour and Anthony D. Danhelka of the Chicago-based Swanson, Martin & Bell, LLP, counsels for St. Joseph Hospital, argued that petitioner Public Guardian “did not list St. Joseph Hospital as a party in the petition” nor does it allege that the hospital “possesses or controls of any personal property, books of account, papers or evidences of debt or title to lands that belong to Mr. Davies.”
The lawyers said the petitioner represented by James Burton of the Public Guardian merely attempted “to improperly boot-strap other causes of action” under the law (755 ILCS 5/16-1) and “only vaguely alleges that St. Joseph Hospital breached its duty of care to Davies and that its employee failed to report elder abuse of Mr. Davies.”
St. Joseph Hospital at 2900 North Lake Shore Drive was a next-door neighbor of Davies, who would walk a few steps south, if he needed health care. It was while he was confined in the hospital, where he came under the care of Pasamba, hospital’s Certified Nursing Assistant, and they developed friendly and social relations. If it were not for the relationships that they established in the hospital, Davies would not have met Pasamba.
USING EMPLOYER’S RESOURCES FOR EMPLOYEES PERSONAL GAIN IS UNETHICAL
In some companies, it’s unethical for some employees, like telephone operators to reach out to clients, using the companies’ database, to pursue personal business interests with their clients, without permissions from their employers. And this applies to doctors, nurses, health care employees, lawyer partners of big law firms and other employees. Unethical violations of company rules usually lead to firing from the job. It is not yet known if Pasamba has been fired from her job but Ms. Rubio, Pasamba’s skilled nurse supervisor, is still employed at St. Joseph Hospital, according to sources.
The St. Joseph Hospital doctors recommended that Davies needed “home health agency” as he needed “in-home” assistance. But Davies “never used home health agency” and chose Pasamba, who took “several weeks leave from the hospital and became Mr. Davies’s in-home caregiver.”
On Sept. 13, 2008, when Davies fainted, he was rushed to St. Joseph Hospital, which came to know for the first time that Pasamba had become his caregiver.
Because Pasamba and Rubio worked on the same floor of the hospital and Rubio had oversight duties over Pasamba, the Public Guardian believes. Rubio would have known earlier that Pasamba was hired by Davies as his caregiver and could have formed reasonable suspicion that Pasamba was financially exploiting Davies.
The Public Guardian alleged St. Joseph Hospital owed a duty of care to Davies as a frequent patient of the hospital and it believes St. Joseph Hospital “knew or should have known of the financial exploitation by Carmelita Pasamba and that, by failing to act, it negligently and irresponsibly breached its duty of care to Mr. Davies.”
MERE SUSPICION IS ENOUGH TO REPORT ELDER ABUSE AND NEGLECT – ILLINOIS LAW
Under the Illinois Elder Abuse and Neglect Act, any person who suspects abuse, neglect, financial exploitation, or self-neglect of an eligible adult may report the suspicion to a designated agency. If a mandated reporter develops a belief that an eligible adult, who because of dysfunction is unable to seek assistance for himself or herself, has, within the previous 12 months, been subject to abuse, neglect, or financial exploitation, the mandated reporter must report the belief within 24 hours to a designated agency.
Because Davies has been diagnosed by St. Joseph Hospital later to have “severe dementia” and thus would be “unable to seek assistance for himself,” the Public Guardian believes Ms. Rubio should have reported her suspicion of Pasamba’s “abuse, neglect or financial exploitation” of Davies.
The Public Guardian said when Rubio learned that Pasamba was appointed as “Mr. Davies power of attorney,” she (Ms. Rubio) “never saw it as a violation of ethics.” Even after Rubio “learned Pasamba made some purchases and remodeled her home.”
And even if “Rubio had such knowledge and duty to report, there are no factual allegations or evidence” to report St. Joseph hospital (as) merely as Rubio’s employer under the Elder Abuse Act, according to St. Joseph Hospital’s lawyers.
The judge would have to rule if mere “suspicion and not factual allegations or evidence” is sufficient to report an elderly abuse.
When Pasamba was appointed “temporary guardian of Mr. Davies on July 7, 2011, Ms. Rubio also developed a suspicion that Mr. Davies may be taken advantage of. However, she did not know whether her suspicion related in any way to financial abuse.”
But when Rubio “acted on her suspicion by notifying Mr. Davies’ only known contact, who agreed to look into it,” it was a little bit too late as the “alleged financial exploitation of Mr. Davies had already been completed.”
Pasamba was able to issue checks from Mr. Davies’ accounts totaling $827,940.03. Aside from Pasamba, 61, the others cited in the citation to recover assets are Pasamba’s younger sister, Jocelyn Baker, 45, and her daughter, Donabel Copon, who assisted each other in giving care to Mr. Davis, Pasamba’s son, Dennis Pasamba, her husband, Edgardo Pasamba, Filipino American lawyer Alfonso Bascos, 76, officer of the Filipino American Council of Greater Chicago, and St. Joseph Hospital.
They are charged with 11 counts of various violations, including for incapacity for undue influence, and breach of fiduciary duty, conversion, conspiracy, professional negligence (malpractice) by Bascos for preparing the estate documents of Davies, including a power of attorney, pour-over will and a trust.
Filipino American Attorney Arcadio “Jun” Joaquin, Jr., counsel for Bascos, said “the oral argument on Thursday, Oct. 4, will also be a status hearing for other defendants before issues are joined. They will be followed by discovery, which entails a long period of time since there are several parties.” (email@example.com)
PHOTO CAPTION: This is the photo of St. Joseph Hospital at 2900 North Lake Shore Drive, Chicago, Illinois. (jGLiPhoto by Joseph G. Lariosa)
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