Indiana abortion Dr. Caitlin Bernard violated privacy law, board finds

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INDIANAPOLIS — An Indianapolis doctor, who spoke publicly about providing abortion care to a 10-year-old rape victim from Ohio, was found liable Thursday for violating state and federal patient privacy laws by the Indiana Medical Licensing Board.

Indiana Attorney General Todd Rokita accused Dr. Caitlin Bernard of violating state and federal law by failing to report child abuse to state authorities and for publicly speaking about the girl’s case, breaking patient privacy. He originally submitted a complaint to the board in November 2022, requesting the Indiana Medical Licensing Board to impose “appropriate disciplinary action” on Bernard.

During the final disciplinary hearing Thursday, Bernard told the seven-member board that she followed state reporting requirements and hospital policy — which she has asserted repeatedly. Bernard said she notified hospital social workers of the child abuse and that Ohio authorities were already investigating the girl’s rape.

Bernard’s lawyers argued that she did not release any identifying information about the girl that would break privacy laws.

But in a split decision, the board found that the doctor violated privacy laws in her handling of the 10-year-old abortion patient’s information. The board cleared Bernard of charges that she failed to report child abuse.

While Bernard could have had her license revoked, the board found her fit to continue practicing medicine. She was found liable on three separate counts and will be fined $3,000 and receive a letter of reprimand.

“Like we have said for a year, this case was about patient privacy and the trust between the doctor and patient that was broken,” Rokita said in a statement after the decision was announced.

The politically contentious case fueled national debates in the wake of the overturning of Roe V. Wade last summer.

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10-year-old girl sought abortion after rape

The information about the 10-year-old girl appeared in a July 2022 IndyStar article about reduced abortion access following the U.S. Supreme Court’s Dobbs decision in June. Ohio’s six week abortion ban was in effect for about two months before facing legal challenges and being put on hold.

And Indiana’s Republican-dominated Legislature also passed an abortion ban after the Ohio case drew national attention. But abortions are permitted to continue in the state as it waits for an Indiana Supreme Court decision on the ban’s constitutionality.

Abortion rights advocates and politicians, including President Joe Biden, used the story to support their arguments. Some conservatives questioned whether the story was true until a 27-year-old suspect was arrested in Ohio and charged with the girl’s rape in July.

Rokita’s office says the information Bernard shared with IndyStar about the girl, which included her age and state of residence, violated privacy laws. The reporter has been subpoenaed for the hearing.

Bernard’s employer, Indiana University Health, said it conducted an investigation and found her in compliance with privacy laws.

Rokita’s complaint also claims Bernard failed to immediately report to Indiana authorities the abuse that led to the girl’s pregnancy.

Bernard said those crimes had already been reported to authorities in Ohio, where they took place and where the girl lived. She said she also alerted the Indiana Department of Child Services to the abuse in a termination of pregnancy report submitted within the three-day limit set by state law.

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Final hearing centers on patient privacy

Indiana Deputy Attorney General Cory Voight argued Thursday that the board needed to address what he called an “egregious violation” of patient privacy and the doctor’s failure to notify authorities about the rape.

Voight told the medical licensing board that as a result of Bernard’s disclosure, “everyone – the country – learned about her patient. Learned a 10-year-old little girl was raped and had an abortion.”

Voight also said Bernard’s failure to immediately report the child abuse ended with “a child returning to live with her rapist for five days in Ohio.”

Bernard’s lawyer Alice Morical said the doctor has reported child abuse of patients many times a year and that a hospital social worker confirmed with Ohio child protection that it was safe for the girl to leave with her mother.

Voight also questioned Bernard’s choice to publicly speak out on the Ohio girl’s case with media instead of using a hypothetical situation.

“I think that it’s incredibly important for people to understand the real-world impacts of the laws of this country about abortion,” Bernard said. “I think it’s important for people to know what patients will have to go through because of legislation that is being passed, and a hypothetical does not make that impact.”

Lawyers with the attorney general’s office also repeatedly asked if IU Health’s policy to report suspected child abuse complied with state law. Officials of IU Health, which is the state’s largest hospital system, testified that the Indiana Department of Child Services has never objected to the hospital policy before.

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Todd Rokita’s office handles Caitlin Bernard case differently

Longtime health care attorney David Jose told IndyStar that board members can excuse themselves if they have ties to a case. Members of the state’s licensing board have made political contributions to Rokita, who is a Republican.

Jose has never seen a member do so based on political contributions to the official whose office puts complaints in front of the board, but “I could see how that could be raised as a conflict,” he said.

Complaints filed against doctors are usually prepared and prosecuted by deputies in the Indiana Attorney General’s Office. The complaint against Bernard, however, was signed by Rokita himself, and Rokita’s office has been using the private D.C. law firm Schaerr Jaffe to help with the case.

“I’ve never seen anybody other than a deputy attorney general representing the state and prosecuting a licensure action against a professional, whether it’s a doctor, nurse or chiropractor, whomever,” Jose, who has been representing clients in front of licensing boards over 30 years, told IndyStar.

It’d be “very rare,” he said, to see outside attorneys on the state’s side. But he also said state agencies hiring private attorneys in legal matters isn’t unprecedented. Jose declined to comment specifically on Bernard’s case.

Rokita is likely to see a political boost from his ongoing focus on Bernard’s acts, according to University of Indianapolis political science professor Laura Wilson. The case against Bernard strengthens his position as “the name and the face” of the anti-abortion movement in Indiana, she said.

Rokita, however, says this has nothing to do with politics.

“It is about two things and two things only, patient privacy and the doctor’s failure to report accordingly,” his office told IndyStar.