Mercy Health, county Prosecutor argue ethics, law on body cavity search warrants in court

ELYRIA — Attorneys for Mercy Health Hospital in Lorain butted heads with the Lorain County Prosecutor's Office on Thursday in Common Pleas Judge Giovanna Bremke's courtroom over medical ethics and civic duty. At issue was the Prosecutor's Office's attempt to have Mercy Health, its president Dr. Gil Palmer and two other doctors, Alok Jain and Bledar Kovaci, held in criminal contempt for refusing to comply last fall with two court-issued search warrants to remove and seize a suspected baggie of drugs from an arrested suspect's rectum. Two of those doctors testified they couldn't do a rectal exam or "scope" the patient because of medical ethics. Bremke on Thursday presided over a contentious six-hour hearing that at times was confrontational with heated legal debates between Assistant Prosecutor Matt Kern and a trio of private attorneys representing Mercy Health — Erin Hess, Taylor Knight and Henry Hilow. "You cannot ethically or conscientiously put a probe in (a patient's) rectum" without their informed consent, Hess argued. Kern saw it differently: Mercy Health was "aware of a court order and willfully ignored it" because its attorneys were worried about being sued, not because of a "conscientious objection," he argued. Bremke did not make a ruling after the hearing concluded. She ordered the parties to make further written legal arguments and provide them to her court by 9 a.m. Monday. Mercy Health is a private, Catholic Church-affiliated health system with hospitals in Lorain, Oberlin and elsewhere. It is the only hospital in Lorain. The Prosecutor's Office in August asked then-Judge James Miraldi to issue a ruling on its request that Mercy Health "show cause" why it shouldn't be held in contempt of a court order. After multiple continuances, an oral hearing was finally held Thursday. Mercy Health argued that it would have been unethical to seize the drugs without the patient's consent and that no doctor would ever agree to do so. Allowing the alleged drugs or foreign object to "pass" naturally was a perfectly acceptable alternative, attorneys for Mercy Health argued. The attorneys bickered over Ohio Criminal Rules of Procedure, the evidence, whether or not testimony was improper hearsay, whether the two sides had provided each other all the evidence they intended to use and expert testimony Mercy Health intended to provide. No evidence was presented that the bag of drugs existed except the testimony of suspicions held by Lorain police. A CT or "CAT" scan at the hospital showed a suspected foreign object that could have been a baggie of illegal drugs but also could have been stool/feces inside suspect Tony D. Harris Jr.'s rectum Aug. 10, 2024. Once admitted to the hospital, Harris wouldn't give consent to more than one CT scan or a digital exam that would have involved a doctor's gloved finger or fingers inserted into his rectum to remove the suspected foreign object. Harris did drink a laxative to induce a bowel movement, but no foreign objects came out prior to his release from police custody, according to court filings and testimony. Mercy Health doctors Jain and Palmer testified that if a bag of drugs or "foreign body" existed, they would have expected it to come out during the approximately two days Harris was being watched by police, security officers, nurses and doctors at the hospital. Harris, 31, was eventually issued a summons to appear in court and released on Lorain Police Chief James McCann's orders, according to testimony in court. Prosecutors charged Harris with felony evidence tampering and obstructing official business. He pleaded not guilty and is free on bond. Harris has prior felony convictions for tampering with evidence, cocaine trafficking and cocaine possession, according to court records. Lorain police arrested him Aug. 10 following a traffic stop on a car they saw leaving a suspected drug house. Harris allegedly acted suspiciously before and after his arrest, and officers felt something in his groin area that wasn't part of his anatomy, according to Lorain police records and testimony in court. Lorain police Sgt. Christian Franco testified he saw something poking out of Harris's anus during a subsequent strip search, something that Harris appeared to be trying to hide from officers. Lorain police policy said Franco was not allowed to remove the suspected drugs from Harris's body, the sergeant testified. A body scan at Lorain County Jail showed something in Harris's rectum, and corrections officers refused to allow him in the jail, believing the object was illegal drugs, Franco testified. Lorain police officers then took Harris to Mercy Health Hospital in Lorain while they got Miraldi to sign a search warrant ordering doctors to seize the item. Apparently concerned that they might harm Harris and that he hadn't given them informed consent for any invasive medical procedures, Mercy Health staff called their legal counsel and refused the search warrant. A board-certified gastroenterologist, Jain testified he never has and would never do a digital rectal exam on anyone, nor place an endoscope — a tube with a camera in it — into a patient without their signed, informed consent. To do otherwise would be a form of assault or medical battery, he and Palmer testified. Palmer likewise testified he would never do a digital rectal exam without consent, just as he would never do a pelvic gynecological exam on a woman without consent. Both procedures would be unethical, unconscionable, potentially illegal and could result in civil liability, he testified. The additional danger was that if there was a baggie of illegal drugs inside Harris, it could rupture and he could suffer an overdose and die, the doctors testified. The doctors, "they're worried about killing the patient," Hilow argued. Kern suggested it could be just as dangerous to leave the drugs in the baggie as it might rupture without any medical intervention. He suggested Jain was skilled enough to safely use an endoscope to see the foreign object and then to remove it. Jain also testified that a piece of stool created by the digestive process is "generally larger" than what doctors saw on the CT scan. Lorain narcotics Detective Craig Payne testified he couldn't get Mercy Health and its doctors to execute a second search warrant issued by Judge Christopher Rothgery. Palmer, Jain and Kovaci all were named as subjects ordered by Rothgery to execute the search warrant, but Payne testified he was told they had all left when he went there Aug. 12. An emergency department doctor, Lauren Portman, was captured on Payne's body worn camera telling him she would never do the procedure. "Forcing a rectal exam on a patient is assault," she told Payne. Later she noted that even if Harris was actively refusing to have a bowel movement, he couldn't hold it forever. "I mean, you can only refuse for so long," she told Payne, adding that the doctor attending Harris would have to be the one to order a laxative. Prosecutors alleged in court that the doctors knew the warrant was coming, pointing to notes in Harris's medical records, and Kern suggested any doctor on the Mercy Health staff could have done the procedure. Palmer testified it wasn't that easy. He testified he's not trained nor certified to do an endoscopy if one was needed, and that if one had been needed he would have consulted Jain, the head of the hospital's gastroenterology department. Physicians have a "civic duty" to the law and society, but "I'm not going to violate the sacred contract of a patient/physician relationship" just to fulfill it, Palmer testified. Plus, as a trained emergency room doctor with three decades of experience who still works weekend shifts while serving as hospital president, Palmer testified that best medical practice is "you do not interfere with the natural passage of a bag of drugs." Mercy Health, Palmer and Jain sued McCann, the city of Lorain, Lorain County, and various city and county officials Dec. 31 in U.S. District Court in Cleveland on the grounds of violations of its right to free exercise of religion, due process and equal protection violations and for retaliation, among other claims. U.S. District Judge Philip Calabrese refused the hospital's request for a temporary restraining order barring McCann and the city from terminating the hospital's security police operating agreement. The agreement allowed hospital security to act as sworn, commissioned police officers. McCann terminated that seven-year-old agreement effective Jan. 1. Lorain city officials have denied the allegations in Mercy Health's lawsuit. The city decided last month to allocate $50,000 to defend the lawsuit, with any legal costs above and beyond that deductible to be paid by the city's insurance provider. County Prosecutor Tony Cillo, who took over from Tomlinson in January, previously said that if the hospital had a problem with the warrant, it should have raised that issue in court. Dr. Mark Ausilio, chairman of Case Western Reserve University School of Medicine's bioethics department, told The Chronicle last month that Harris had "a firm right to refuse treatment." Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.