Judge Denies St. Joseph Hospital’s Motions To Dismiss

by Joseph G. Lariosa

 

CHICAGO (jGLi) – A hospital owes not only a duty of care for the health of its patient but also a duty to protect its patient’s financial welfare against its hospital employees.

With this ruling, Circuit Court of Cook County Judge Lynne Kawamoto of the Probate Court in Chicago, Illinois denied last Thursday, Oct. 4, the twin motions to dismiss filed by St. Joseph Hospital which was accused by Cook County Public Guardian of “breach of duty of care” and “failure to report elder abuse” on its former frequent patient, retired Chicago engineer Marshall F. Davies, 94, who lost nearly one million dollars of his savings from the hospital’s Filipino American employee, Carmelita Pasamba.

Anthony D. Danhelka of the Chicago-based Swanson, Martin & Bell, LLP, counsel for St. Joseph Hospital, told Judge Kawamoto that the petition for issuance of a citation to recover assets against his client hospital should be dismissed “pursuant to 735 ILCS 5/2-615 because petitioner has failed to allege that St. Joseph Hospital concealed, converted, or embezzled assets of Mr. Davies.”

Mr. Danhelka, the associate lawyer of lead counsel Patricia S. Kocour on the case, also argued that the petition must be dismissed “pursuant to 735 ILCS 5/2-619 (a)(9) because petitioner has no evidence that St. Joseph Hospital concealed, converted, or embezzled assets of Mr. Davies.”

Danhelka said “Mr. Davies was not a patient during the dates the checks (were issued) and financial transactions occurred” when Pasamba issued the checks on behalf of Mr. Davies, who was later diagnosed to have severe dementia.

PASAMBA TOOK CARE OF DAVIES AND HIS ALL HIS ASSETS

Pasamba was hired in January 2008 by Mr. 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, a certified nursing assistant (CNA), worked on the St. Joseph Hospital floor where Mr. Davies was confined and cared for Mr. Davies.

During the next three years, Pasamba and her family provided care for Mr. Davies and also took control of all his assets.When Judge Kawamoto asked Danhelka if the checks could have been issued “between dates during the first and second admissions” of Mr. Davies to the hospital, Mr. Danhelka answered, “some of them did.” But Mr. Danhelka argued, “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 Mr. Danhelka, “What duty does hospital owe to its patient to protect from harm? Does this include financial harm from its employees?”

With these questions, Mr. Danhelka, answered, “yes,” leading Judge Kawamoto to deny the two motions of the hospital.  Public Guardian’s representative James Burton explained to this reporter that Judge Kawamoto’s ruling was in keeping with a famous case involving a Chicago police officer who exploited an elderly gentleman while the officer was working on his job. The officer was able to get his name written into the trust documents of the elderly gentleman without physically taking the money but only had to wait until the gentleman died.

Under the Illinois statute, there was no more need to prove that St. Joseph Hospital had to physically take the money from Mr. Davies. A case can be brought against the hospital by mere suspicion.

PUBLIC GUARDIAN ORDERED TO RESPOND TO BAKER’S MOTION

Judge Kawamoto also ordered the Public Guardian to file a response to Jocelyn Baker’s motion to dismiss by November 5, 2012. Baker had to file her reply by Nov. 12, 2012. They argue the motion on Dec. 6. Ms. Baker is the younger sister of Pasamba. In 2008, Baker cashed three checks from Davies’ account in the amount of $23,000 as a “loan;” and another $5,000 check as her Christmas and Birthday gifts; and a $10,000 salary per month as Davies’ caregiver. In 2009, she was issued checks totaling $22.840; and in 2010, a $3,500 check “not for her salary as caregiver of Mr. Davies.”
Ms. Baker received a total of $60,840 from Davies’ account.

During the June 6, 2012 status hearing of the case, Ms. Baker told Attorney James Burton she was representing herself and was not planning to retain a lawyer because she wanted to settle the case.

But Ms. Baker had a change of heart when she later hired Alan B. Bers as her new lawyer.Judge Kawamoto also ordered Filipino American lawyer Alfonso S. Bascos “to tender his filed answer and affirmative defenses to the court and all parties within two weeks.”

Mr. Bascos’ lawyer, Filipino American Arcadio “Jun” Joaquin, Jr., said he had submitted Mr. Bascos’s answer “but it is not a motion to dismiss because of the conspiracy charge” against his client. Mr. Bascos received $250 for preparing the Special Power of Attorney (SPA) for Pasamba as co-signer for Davies’ checking account; and a $1,750 check for preparing Davies’ “will for a couple of page documents done in two hours like the SPA.” The third check dated July 6, 2011 for Mr. Bascos amounting to $3,685 was dishonored by the bank when the Public Guardian sought and obtained a court order to freeze Davies’ checking account.

Judge Kawamoto also ordered St. Joseph Hospital to file its answer to the denial of the motions within 28 days and ordered the hospital to turn over subpoenaed records to the Public Guardian within two weeks.

Aside from the oral argument of the case on Dec. 6 at 2 p.m., a status hearing for the co-defendants will also be heard.  Pasamba, 61, was able to issue checks from Mr. Davies’ accounts totaling $827,940.03. Aside from St. Joseph Hospital, Pasamba and Pasamba’s younger sister, Jocelyn Baker, 45, and Attorney Bascos, 76, the other defendants in the petition for citation to recover assets are Pasamba’s adult daughter, Donabel Copon, who, like her mother and her aunt, took turns in giving care to Mr. Davies; Pasamba’s son, Dennis Pasamba, and her husband, Edgardo Pasamba.
(lariosa_jos@sbcglobal.net)

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PHOTO CAPTION:

File photo of Judge Lynne Kawamoto (courtesy of Women’s Bar Association of Illinois).


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