Drs. Michael Parsa and Christopher Cabanillas are employed by University Medical
Center of El Paso. They are two of numerous defendants in a lawsuit filed by the ACLU. Even though they are hospital employees, they are being sued in their individual capacity.
The plaintiff, Jane Doe, is a 54 year old New Mexico resident. She was visiting a family friend in Juarez, Mexico. On return, she crossed the bridge back to the US, where she was chosen at random for “additional screening.” This “secondary inspection” involved a pat-down where an agent “inserted her finger into the crevice of Ms. Doe’s buttocks.” Nothing was noted. But, that was not the end of this search.
Ms. Doe was instructed to stand in line with other people selected for “additional screening.” Next up. A drug detection dog which sniffed the people in the lineup. Note: The Supreme Court has held that a court can presume a search is valid if police say it was based on an alert by a dog trained to detect drugs.
According to the lawsuit, the dog handler “hit the ground by her feet, but did not hit the ground by any of the others in the line,” and “the dog responded by lunging onto Ms. Doe and landing its front paws on her torso.” This false positive alert was the basis for all that followed.
The agents stripped search the plaintiff, examining her vagina and anus with a flashlight. Finding nothing, the lawsuit stated they transported her in handcuffs to University Medical Center of El Paso. One of the agents informed Ms. Doe they needed to monitor her bowel movement. Ms. Doe asked agents if they had a warrant. One responded they did not need a warrant.
Ms. Doe was handcuffed to the exam table.
“Medical Center staff wheeled a portable toilet into the room and directed Ms. Doe to ingest a laxative. [Border patrol] agents Portillo and Herrera … remained in the room with her while the laxative took effect. The agents observed Ms. Doe have a bowel movement. No evidence of internal drug smuggling was found as a result of this search.”
More allegations from the lawsuit:
Defendant Cabanillas, in consultation with Defendant Parsa, ordered an X-ray of Ms. Doe’s abdomen. Medical Center staff X-rayed Ms. Doe, subjecting her to unnecessary radiation. According to medical records, the exam produced “[n]o evidence of radiopaque foreign bodies.”
“Defendant Parsa entered the examination room and barked an order that Ms. Doe spread her legs. She complied.”
“Defendant Parsa then conducted a series of examinations. While [Border Patrol] agents and other Medical Center staff watched, he inserted a speculum into Ms. Doe’s vagina and observed the interior cavity. According to medical records, Defendant Parsa did not see any foreign objects or evidence of internal drug smuggling.”
“Defendant Parsa also stuck his fingers into Ms. Doe’s vagina while palpitating (sic) her abdomen. This bimanual cavity search was negative: According to medical records, Defendant Parsa did not feel any foreign objects or evidence of internal drug smuggling.”
“Defendant Parsa also conducted a rectal examination: he inserted his fingers into Ms. Doe’s rectum and probed the orifice for foreign bodies. According to medical records, Defendant Parsa did not feel any or find evidence of internal drug smuggling.”
“Defendant Cabanillas, in consultation with Defendant Parsa, ordered a CT exam of Ms. Doe’s abdomen and pelvis. During the CT scan, Medical Center staff barraged Ms. Doe’s body to create a three dimensional image with more detail than a typical X-ray. In so doing, they forcibly exposed her to “between 150 and 1,100 times the radiation of a conventional x-ray, or around a year’s worth of exposure to radiation from both natural and artificial sources in the environment.” According to medical records, the exam resulted in “[n]o . . . evidence of ingested radiopaque objects.”
“After the CT scan, a [Border Patrol] agent presented Ms. Doe with a choice: she could either sign a medical consent form, despite the fact that she had not consented, in which case [Border Patrol] would pay for the cost of the searches; or if she refused to sign the consent form, she would be billed for the cost of the searches. She refused. The Medical Center consent form reflects that Ms. Doe withheld consent: “Refusal to Sign” is written in the patient signature line, a refusal witnessed by Jessica R.’
Ms. Doe received a bill from the hospital for $5,000 and she has refused to pay.
The lawsuit continues:
“Medical Center policy L-13 on searches by hospital personnel does not permit an invasion of a person’s body for purposes of a search without either consent or a search warrant. However, in practice, the Medical Center staff and [Border Patrol] agents routinely conduct invasive cavity searches without a warrant, consent or sufficient suspicion to justify the searches. When Ms. Doe expressed dismay about the unreasonable searches she suffered, a Medical Center employee responded that these procedures were routinely followed when an individual is brought in by [Border Patrol] agents. The employee also told Ms. Doe that what happened to her was not invasive.”
Doctors who work in the ER need to fully understand what they may and may not do when evaluating patients brought in by police – particularly when there is no therapeutic basis for the visit. The sky is not the limit.
This is the most hideous example I have ever read of American gov’t employees abusing a person at the border and I am deeply saddened and enraged that a physician participated is this abuse.
Avoid Mexico. Wait for Cancer to develop. Keep all records.
They are guilty of violating her civil rights and medical malpractise. They should be convicted/ lose their medical license and go to jail. This is disgraceful, and an insult to doctors who treat their patient’s with RESPECT, and are concerned with human dignity!! ? them whether they would have allowed this to have been perpetrated against THEIR family member. Ms. Doe should own the hospital and fire any employees involved in this heinous behaviour!!
These doctors were clearly idiots and deserve what they get. I am surprised no criminal charges have been filed.
We need not act as errand boys for the police especially when they ask that doctors perform illegal acts and abuse patients.
There was absolutely no diagnostic or therapeutic indication to perform these invasive and potentially harmful procedures. The medical personnel involved in this abuse should feel all the wrath that the legal and medical board can hurl at them.
I can only imagine myself violated that way. Aside from the man-handling, and the humiliation, what if she suffered a perforated diverticulum and died? Colostomy anybody, just for fun?
I think we can leave the “American Government” part out of it. This is just a case of power hungry jerks. Little Barney Fife’s gone amok.
I forwarded this to a thread of friends, both physicians and non medical. I also sent a short article on search and seizure constitutional law written by the CATO foundation . 10 of them just joined the libertarian party!
This smacks of Dr. Mengele’s activities in the 3rd Reich. Is there any reason for not revoking their licenses? What was done, if accurately described, is clearly indefensible. Where does it logically end?
I agree with Dr. Kasden’s omission of the “American Government” from this. While the guys in DC and their minions are far from blameless, this is primarily a medical issue–criminal assault by and in conjunction with similar by the Border Patrol–and doubtfully related to anyone on the Potomac. The “doctors” involved have betrayed whatever trust was placed in them to be guardians and healers of the sick. They need to be at least prevented from any further activity that can be called legal practice of medicine, and that needs to happen even before both criminal and civil suits begin.
I am a practicing physician and I am beyond horrified to read this account of an apparently innocent woman being subject to such abominable abuse.
In my opinion, this woman deserves a full apology, monetary compensation, and psychological support for the ordeal. The border agents and law enforcement agents to carried this abuse of her should be imprisoned. As for the doctors who participated in the abuse of this woman, cancel their licenses and ban them from practicing medicine in any place on the face of the earth.
Was this an instance of a mass loss of judgment?
Aside from medical ethics, what about common sense and a presumption of innocence?
Are we no longer a nation of laws and equal justice under the law?
Was everybody at that hospital ignorant: the administrators, X-ray and Ct technicians, and billing staff who went along, to list a few, ignorant of the injustice and ramifications of all of this?
Were the border agents (and their superiors) so poorly trained as to be unaware of how over-reaching, outlandish and indefensible their behavior was?
From childhood we are taught to comply and cooperate with the police and other law enforcement agencies.
We need also to be taught and reminded, just as if we were in the military, that we have the right and the duty to refuse unjust and illegal orders.
This case is a terrifying example of people (compliant and cooperating hospital staff, including physicians) being unaware of their duties and rights of refusal when confronted by government officials and even clueless or forgetful about medical ethics in such situations.
Perhaps their (in this case undue) respect for law enforcement impaired their judgment.
Whatever, this case should be used as a teaching tool in every medical school and hospital in the nation as well as in continuing medical education courses.
I trained at the University of Arizona in Tucson (one hour from the border) and I never heard of anything like this.
The lesson here is obvious: The medical professionals involved in this travesty forgot the power of a simple statement: “Just say NO.”
Ms Doe should also own a piece of the Border Patrol for their part in this horrific ordeal. She would not be in this mess had it not been for the dog handler, and other agents who’s perpetuated a contrived false notion that she was smuggling drugs.
This isn’t the government I grew up with, this is the government that we feared when I was growing up. This is government that Ronald Reagan collapsed beginning with “Mr. Gorbachev, tear down this wall!” This is the government I now fear.
What is the false positive rate of narcotic-trained alert dogs? If it’s 10% or higher, the Supreme Court should take another look at the constitutionality of “probable cause”, since at the very least, this smells like a violation of the Fourth Amendment.
During residency, if we saw a child that was brought to the ER with suspicion of foreign body ingestion, plain films and observation were the treatments of choice.
Based on the facts presented here, Mrs. Doe’s treatment was reprehensible. She’s an American citizen, for goodness sake. Any American woman being harassed like this would be in tears. I cannot understand the mindset of the ER docs either. Wish I was one of the flies on the wall in that ER suite to see exactly how this transpired.
The federal gov’t does not get released from responsibility, as suggested by several comments. The federal gov’t employed individuals involved and set policy for managing the results of the dog search (presumed from the info provided). The doctors should be censured and penalized to a real extent but not necessarily to the point of permanently losing their licenses. They should be rehabilitated. I suspect teaching individual responsibility has not occurred in their training. Somehow hard to believe they were not acting under orders or extenuating circumstances were not present. This example, plus other multiple examples of governmental intrusion into our lives has prompted my conversion to the Libertarian party.
I’m sorry, but must play gadfly and disagree with all the previous comments. While a Civil Rights case against the TSA may be warranted, this is an obscene abuse of the courts and barratry to sue these doctors individually, when they were acting as agents of the Justice Department. They were not providing medical care, but performing a lawful search upon a body packing suspect. You cannot give or refuse Consent as this is not a medical procedure. It is far safer that such procedures be performed by trained medical personnel than court officers.
Body Packing is a real entity and far more dangerous to the Drug Mule than any CT scan. Many Body Packers die every year. Frankly giving a laxative is wrong as it could cause rupture of the drug containers – an osmotic bowel prep such as Golitely is far safer. If the plain film of the Abdomen was unclear due to feces & gas, the CT was warranted. As for the Pelvic and Rectal, NYS law requires that every patient be given a pelvic & rectal as part of their admission physical.
While the courts should decide what is an appropriate search protocol for a traveler IDed by a drug dog – don’t hold the MD’s responsible for doing as they employer told them – this is not a Nuremberg case; they did not harm her.
As the hospital didn’t provide medical care, she should not be billed – only the TSA.
Louis Brandeis…I’m going to respectfully disagree with your conclusion.
If a physician in a hospital (that has no affiliation with the Bureau of Prisons) is examining a patient – either by physical exam or radiography – to identify the presence or absence of a drug packet in a body cavity – that is the practice of medicine. It is a diagnostic procedure with an associated standard of care. There are times that consent is not required for the practice of medicine. For example, in the case of a life threatening emergency, consent is implied.
In this case, there was no ostensible emergency.
If a doctor wants to voluntarily participate in an invasive search (that arguably requires medical expertise), and the patient’s life does not appear to be in jeopardy, he or she would be best served to wait for a judge signed court order (eg: warrant) to protect yourself. The judge would then weigh the evidence of probable cause- and it would be sanctioned legally.
To say that the patient experienced “no harm” is callous and insensitive. If it were your rectum being probed against your will – and your GI tract that was purged – you might come to another conclusion.
Finally, you say the doctors were following orders of their employer. Not so. The hospital had a written policy that stated that such invasive searches can only be performed with consent or a valid search warrant; neither of which were present in this case. That’s why the doctors are being sued individually. They deviated from established, written hospital policy.
I would also add my disagreement with the “Louis Brandeis” post. This woman was being illegally detained against her will. Probable cause can only go so far. She had the right to ask to be discharged immediately from the hospital. Had she attempted to walk out, she would no doubt have been shackled with wrist restraints or handcuffs. Maybe she already was…
I agree with Medical Justice. This should have been backed by a signed warrant issued by a sitting judge. It would be up to the judge to decide if she was a hazard to herself based upon the possible rupture of bags of drugs in her colon, which in any case did not exist. If plain films did not reveal these, even if inconclusive, the presumption of innocence must apply.
Had I been in that situation, I would very calmly have asked the physicians who were invading me if they had a court order for the “invasion.”
I would equally calmly have said to each of them: “I will sue you individually against your entire estate to an inch of its financial viability and tie you up in the courts and depositions for at least 10 years after this day is complete if you continue to perform this examination, which is against my will.”
My sense is that after my comment, the doctors involved would immediately have contacted the CEO of the hospital, who would then have contacted their retained counsel. At the very least, I believe the onslaught would have come to temporary halt.
There is a reason why hospital CEOs are paid the big bucks. They should have had an opportunity to at least hear about this while it was going on.
Michael M. Rosenblatt, DPM
If the TSA brought her to UMC of El Paso, I assumed that they were following established protocol, as positive dog responses are not rare and this must have been a routine event and they had a contract with UMCEP which spelled out testing protocols for Jane Does – who at the time was a prisoner of the Juustice Dept and not a patient with rights. Prisoners cannot refuse body searches!
If the hospital did require a signed search warrant and the search warrant was denied, then the MD’s are guilty. The presented case does not make this clear. Frankly obtaining a search warrant in the case of a positive dog hit is automatic – so this Jane Doe was not harmed.
While no innocent person wants to be subjected to all the indignities of loss of freedom that happened to Jane Doe (which should be subject to review), something triggered the dog to respond and that needs to be investigated.
The fault is with the Justice Department protocols, not with the medical care system – their physical performance of the medical procedures meets the standard of care and to sue the vulnerable individual MD’s because of a disagreement about drug policy, rather than the Justice Dept is an obscene abuse of power by the ACLU (who I normally support with contributions).
In that this is Medical Justice, I am very surprised by the comments. In fact, I think this might be a test. This is a horrific story, but it seems to be taken purely from the plaintiff’s complaint. There are multiple sides to any story, and we have no idea what actually happened.
Shame on the commenters who have jumped to conclusions. I certainly know to take plaintiffs’ arguments with a shaker-full of salt (at least).
The allegation in the lawsuit stated that there was no search warrant, in clear violation of the hospital protocol. Perhaps that was a misstatement by the ACLU. If so, it will be clearly brought out. In addition, the lawsuit states that there has been a pattern of abuse by the ER staff at the hospital. Again, whether or not this is true will come to light.
No less important is that if there was no search warrant, there would be no legal reason to violate the woman’s integrity. Even if the doctors found a bolus of contraband in a body cavity, that discovery would not be admissible in court. She’d be free to go. It’s called the fruit of the poisonous tree. If you locate contraband in violation of 4th amendment, you cannot use that discovery to convict.
In addition, it’s not accurate to say prisoners have no rights. They have fewer rights; but, not no rights. If that were indeed the case, why stop with a cavity search? Why not stick needles into breast implants looking for illicit drugs? Why not do a laparoscopy? Yes, of course, that would be overreach.
The Supreme Court decided a case recently where a person with outstanding traffic tickets was arrested. He was cavity searched in jail. This went all the way up to the Supreme Court where he argued such a search was overkill for an arrest related to outstanding tickets. The Supreme Court stated that prisons are dangerous places and staff need to search to make sure no weapons or drugs create security risks. That was a divided decision. (In that case, it turned out the outstanding traffic violation was a mistake – and there was no reason for the arrest). But in the ER case, no argument can be made about security of the hospital. The border agents were using the doctors to identify a reason for the arrest. This is a profoundly deep difference.
First, my comments are based upon taking this story at face value…and the second side is not given.
Doctors were wrong. No consent, no procedure. And I am as angered as others on this post re. the invasion of the “non-patient.”
Doctors must now and solidly just say NO to requests from the govt for such illegal searches, illegal x-rays, and the now intrusive (and against Hippocratic oath) demand that doctors ask patients if they have guns in the home, then expose this information to anyone. Contrary to a few “lefty” doctors, this is not a public health issue.
Next…recent story of a man in New Mexico with same probing, possibly even worse. He has successfully sued the police. I do not agree with what the doctors did, but 1) they must have been under some sort of federal pressure to feel they could do this, and, 2) aren’t they covered by hospital’s liability policy, and 3) this case should be publicized in every major medical journal.
And I am among the posters who feel the federal govt should be sued…even realizing border agents have a difficult job.
The closest situation to this attack on a law abiding citizen is “implied consent.” Implied consent allows various observers and in some cases, professionals to “render” necessary aid in the case of an emergency that is life-threatening. This is defined by our Good Samaritan laws which exist, in various formats in every State.
A citizen who is hand-cuffed to an exam table is not giving his/her consent, by definition. This victim was not a patient at all, but rather an un-convicted citizen forced to suffer invasive procedures due to alleged probable cause.
The bottom line of course is the nature of the probable cause. After the plain films were taken, it became obvious that the border agents and their dog made a serious mistake.
For law enforcement officers this became an “emergency” to prove that they and their dog were correct. At that point, they also had the option to release the citizen with a profound apology and pay her cab fare back to the designated location of her preference.
Shadowing this lapse in judgment by law enforcement is the financial power of our anti-drug laws. The custody industry employs millions of people who profit both directly and indirectly because of restricted drug laws. This includes prison construction and their unions, judges, parole officers, court reporters, defense attorneys, prosecution attorneys, jury management personnel, employees of judges, management of large buildings and the courts, etc.
I bet some of you can think of others I omitted. Part of this travesty rests with the financial power of the custody industry itself, which was an actor in this breach of our Constitution.
This story is not over. This incident needs to be publicized, not just because of attempts to legalize plants like pot, but also to demonstrate the power of the custody industry itself, and its ability to run amok.
A 20 million dollar settlement would send the right message.
Michael M. Rosenblatt, DPM
“What is the false positive rate of narcotic-trained alert dogs?”
I read it’s very high, over 50% of the time the dogs are wrong.
http://blog.norml.org/2011/02/04/drug-dogs-false-alert-over-200-times-in-uc-davis-study/
http://www.npr.org/blogs/thetwo-way/2011/01/07/132738250/report-drug-sniffing-dogs-are-wrong-more-often-than-right
“this smells like a violation of the Fourth Amendment.”
Apparently 4th amendment is suspended 100 miles around the borders.
@Louis Brandeis “something triggered the dog to respond and that needs to be investigated.”
See above – the dogs are more often wrong. There were other cases like this.
“the woman wasn’t harmed”
Is a raped woman harmed? According to the legal definition of rape any penetration of anus or vagina without content is rape. Just because doctors do it doesn’t change this fact. They raped her. Additionally, she could’ve had serious complications from the enemas. She may also get cancer from a CT scan years later. There was no medical indication for the procedure.
In terms of “they were told to do so” – this is Nurenberg type of defense. Didn’t fly in Nurenberg, why should it justify violation of medical ethics here? At least the nazi doctors could’ve said they were afraid for the life of their families.
Even if the docs involved thought they were correct in their actions at the time, I would hope that the shame of doing invasive procedures and tests on an innocent person would haunt them for the rest of their careers. If the situation described were true, I do not see how I could support them continuing to practice.
Schools in my area have started to use trained dogs for drug surveilance (and this in some of the highest performing schools in the state) and this makes me feel less confident about the safety of my children in these schools.