Caitlin Bernard, OB/GYN at IU Health, is pictured with her attorney, Alice Morical (left) at her May hearing before the Indiana Medical Licensing Board. (Photo by Xain Ballenger/The Statehouse File)

By Marilyn Odendahl

The Indiana Citizen

August 2, 2023

The Medical Licensing Board of Indiana has issued its written findings and conclusions along with a copy of the letter of reprimand against Caitlin Bernard, the OB/GYN described by Indiana Attorney General Todd Rokita as an “abortion activist acting as a doctor,” for violating patient confidentiality.

Bernard, employed by Indiana University Health and the Indiana University School of Medicine, was put in the national spotlight last summer after she disclosed to an Indianapolis Star reporter that she was going to perform an abortion on a 10-year-old rape victim from Ohio. The patient was having to come to Indiana because the Buckeye State, at that time, had outlawed abortions after the sixth week of pregnancy.

The written findings document the decision made by the medical licensing board following a 15-hour administrative hearing May 25. Board members voted 5-1 that Bernard had violated medical privacy laws when she talked to her colleague Grant Callen, M.D., and the reporter, Shari Rudavsky, and revealed the patient was from Ohio, 10-years-old and pregnant.

“Respondent’s disclosures to Callen and Rudavsky, when taken in its entirety, contained health information which Respondent had a reasonable basis to believe could be used to identify Patient,” the MLB concluded in its written findings. “Consequently, these disclosures contained protected health information.”

Bernard, represented by lawyers from the Indianapolis firms of DeLaney & DeLaney and Hoover Hull Turner along with pro bono counsel from Arnold & Porter, has until the end of August to appeal the MLB’s ruling to a court of law. In a statement, Bernard’s legal team maintained the doctor did not violate the law.

“In May the Indiana Medical Licensing Board exonerated Dr. Caitlin Bernard on Attorney General Todd Rokita’s most serious and baseless allegations,” the attorneys said in their statement. “While we’re grateful that the Board reaffirms this ruling in their written decision, we continue to dispute the MLB’s finding that Dr. Bernard violated patient privacy.”

Bernard has been ordered to pay a fine of $3,000 and has received a letter of reprimand.

The attorney general’s complaint filed in November 2022 alleged Bernard violated state and federal laws by disclosing protected health information about the patient. Also, the complaint asserted the physician had violated the law by failing to immediately report the suspected child abuse to local law enforcement or the Indiana Department of Child Services and was unfit to practice medicine.

According to court documents in a lawsuit filed by Bernard against the attorney general, Rokita said on national television in July 2022 that Bernard had “a history of failing to report.”

However, the board unanimously found Bernard did not violate reporting laws and she was fit to practice. The written findings noted Bernard informed a social worker at Indiana University Health about the patient the same day she got the referral from an Ohio physician. The social worker then contacted Franklin County Children Services in Ohio and was told a report on the rape victim had already been filed and Ohio law enforcement had been notified.

“In the words of the Board Chair John Strobel, Dr. Bernard is a ‘good doctor,’” Bernard’s lawyers said in their statement. “Despite the political attacks of the past year, she has bravely continued to provide life-saving medical care for her patients. As our legal team evaluates next steps, we are proud to see her work continue.”

The MLB ruled Bernard had breached medical confidentiality laws by revealing information that identified the patient. A safe harbor provision under the Health Insurance Portability and Accountability Act of 1996 only covers health information if the identifiers are excluded.

“Respondent’s disclosures to Callen and Rudavsky, when taken in their entirety, contained unique identifying characteristics regarding Patient, and therefore fell outside HIPAA’s safe harbor provision,” the written findings stated.

Relatedly, Rokita is facing his own disciplinary action for his conduct in the Bernard case. Several attorneys and legal scholars spoke out against him for making accusations against the OB/GYN without evidence and for publicly discussing his office’s investigation before it was completed.

Attorneys from Schaerr Jaffe are representing Rokita before the Indiana Supreme Court Disciplinary Commission. To date, the commission has not filed a complaint with the Supreme Court.

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