Mercy Health, city of Lorain, county issue joint statement on legal settlement

Following legal action in Lorain County Common Pleas Court and federal court, Mercy Health Hospital in Lorain, the city of Lorain and the county Prosecutor's Office have resolved their differences, the parties announced Tuesday in a joint statement. "Mercy Health, the city of Lorain, and Lorain County are pleased to announce that they have entered into new agreements, resulting in a fair and mutually satisfactory resolution of recent state and federal legal matters between them," the parties wrote in a joint statement provided to The Chronicle-Telegram. "The agreements establish a new policy that governs body cavity searches and the execution of search warrants, as well as a new memorandum of understanding with the Lorain police chief (James McCann) which allows the Mercy Health Police Department to employ commissioned police officers to perform police duties," the statement read. Mercy Health, its president Dr. Gil Palmer and Dr. Alok Jain sued McCann, the city of Lorain and Lorain County in U.S. District Court in Cleveland on Dec. 31, alleging violations of their right to free exercise of religion, due process and equal protection violations and retaliation, among other claims. That was a day before McCann's decision to terminate the hospital's seven-year-old security police operating agreement went into effect. Mercy Health alleged in its lawsuit his move was in retaliation for its refusal to comply with search warrants Lorain police obtained from two Common Pleas judges ordering the hospital to search a criminal suspect's rectum for illegal drugs. Court records indicate a settlement was reached in the federal lawsuit, but a copy of that agreement was not immediately available in either federal court records or from any of the parties. "The parties appreciate the assistance of (U.S.) District Court Judge Phillip Calabrese, Lorain County Common Pleas Court Judge Giovanna Bremke, and especially U.S. Magistrate Judge Reuben Sheperd and the court's career Law Clerk Andria Dorsten whose extraordinary efforts helped bring about this resolution," the parties wrote in the statement. "The parties look forward to working collaboratively as they continue to prioritize the safety and well-being of the communities they serve," it concluded. Bremke on March 4 dismissed a request by the Prosecutor's Office to hold Mercy Health Hospital and several of its doctors in criminal contempt for refusing to honor the search warrants. In August, judges James Miraldi and Christopher Rothgery issued search warrants at the request of Lorain police, ordering Mercy Health to search Tony Harris and retrieve the suspected drugs. No drugs were found inside or on Harris after he spent nearly two full days in the hospital, the whole time in police custody. Mercy Health doctors declined to physically perform a cavity search or any procedures without Harris' consent, consent he refused to give. He has been charged with and pleaded not guilty to felony evidence tampering and obstruction charges in Common Pleas Court. Less than a day after Harris was released from the hospital and police custody on a summons, the Prosecutor's Office asked Miraldi to hold Mercy Health in criminal contempt. Aged out of office, Miraldi was replaced by Bremke in the November election, and a six-hour criminal contempt hearing was held Feb. 27 in her courtroom. The Prosecutor's Office dismissed the complaint before she could rule on it. Mercy Health and the Prosecutor's Office have since agreed to come to an understanding "to address policies and procedures for future cavity searches," the Prosecutor's Office wrote in its motion to dismiss the criminal contempt complaint. Lorain police performed a strip search on Harris, 31, after arresting him on Aug. 10 in a car seen leaving a suspected drug house in the city. The strip search and a full body scan on Harris at the Lorain County Jail led officers to believe there was a baggie of suspected drugs in his rectum. Mercy Health doctors cited medical ethics rules and patient safety in refusing to do any invasive procedures on Harris. Removing a baggie of suspected drugs could have broken it and caused an overdose, they argued. The hospital and its doctors argued that allowing the alleged drugs or foreign object to "pass" naturally in a bowel movement was the most-acceptable alternative. The Prosecutor's Office argued in Bremke's court that Mercy Health willfully ignored a court order because it was worried about a lawsuit, not because of a "conscientious objection" to performing a rectal exam. County Prosecutor Tony Cillo said that if the hospital could have gone to court to argue the warrants. A medical ethicist consulted by The Chronicle-Telegram said Harris had the right to refuse any treatment or procedures he didn't want done. Mercy Health is a private, Roman Catholic Church-affiliated health system with hospitals in Lorain, Oberlin and elsewhere. It operates the only hospital in Lorain. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.