By Marilyn Odendahl
The Indiana Citizen
May 24, 2023
Caitlin Bernard, OB/GYN at IU Health, will face the possibility of sanctions or even the loss of her license to practice when she goes before the Medical Licensing Board of Indiana Thursday. She faces allegations from Indiana Attorney General Todd Rokita that she violated patient privacy laws when she confirmed to the media last summer that she would care for a 10-year-old rape victim because abortion then was still legal in the Hoosier state.
The story of the juvenile victim caught national attention after first being included in a story by The Indianapolis Star about the consequences from restrictive abortion laws. Rokita subsequently made several public statements accusing Bernard of failing to properly report the abortion procedure, as required by state law.
After receiving six consumer complaints, the attorney general’s office filed an administrative complaint in November 2022 against Bernard with the medical licensing board. The complaint alleges that Bernard violated HIPAA (Health Insurance Portability and Accountability Act) and state privacy law by releasing the victim’s medical information without the patient’s permission. Also, the complaint charges Bernard failed to “immediately report” the suspected child abuse to Indianapolis law enforcement and the Indiana Department of Child Services.
Bernard’s hearing is scheduled to start at 9 a.m. in a conference room in the South Building of the Indiana Government Center. The board is comprised of six physicians and one layperson who is an attorney. Cory Voight, the director of complex litigation for the attorney general’s office, will be presenting the state’s case. Bernard will be represented by a team of lawyers from Hoover Hull Turner in Indianapolis.
The Indiana Professional Licensing Agency is expecting the national media to be covering the hearing. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana and Kentucky has previously expressed its support for Bernard but did not have any comment prior to the hearing. Indiana Right to Life told The Indiana Citizen it is “awaiting the outcome of due process via of the medical licensing board.”
The proceeding will be live streamed at https://www.youtube.com/@StateOfIndianaProductions .
Leading into this hearing, both sides have filed multiple motions which is unusual in a professional licensing action. Most recently, the attorney general’s office asked the MLB to delay the proceeding until August but Bernard objected and the board denied the motion.
Attorney Laura Iosue has represented clients before the licensing board and was a section chief in the licensing enforcement division of the attorney general’s office for about seven years. She is not involved with the Bernard case and did not comment specifically on tomorrow’s hearing but she did provide a general outline of the MLB process.
The hearing before the board, Iosue said, will be conducted much like a courtroom trial. A key difference is the members of the MLB will be presiding over the case rather than a judge and a jury.
Both sides will make opening statements then they will present their cases by offering evidence and witnesses. Each side will have the opportunity to cross-examine the witnesses and the board members will be able to ask questions as well.
The rules of evidence used in legal proceedings apply in MLB matters but some leeway is usually given since many times the licensed individual is not represented by an attorney.
At the conclusion, both sides will present their closing arguments then the board will deliberate in public before all those who are present at the hearing.
If the board finds misconduct, then it will continue the public deliberation to determine the sanction. The board can impose a range of punishments from a public censure to a letter of reprimand that will be placed in the physician’s licensing file. Also, the board could impose probation which would allow the doctor to continue practicing but with restrictions or reporting requirements.
The most extreme sanction would be revoking the license altogether. Practitioners who lose their license must wait at least seven years before applying for a new license.
Parties in the proceedings can appeal the board’s ruling by filing the case in state court.
The attorney general’s administrative complaint alleges Bernard “repeatedly and regularly” spoke to the local and national media to “perpetuate the coverage of her patient’s private life.” According to the attorney general, two weeks after the IndyStar story was published, a reporter located the victim in Ohio and “knocked on her door with video cameras.” In addition, the attorney general alleges, Barnard told WTHR Channel 13, the NBC affiliate in Indianapolis, that “It is important to tell our patients’ stories as much as we can.”
In her redacted response to the complaint, Bernard disputes she violated the patient’s privacy. In particular, while the IndyStar article attracted national attention, “many news articles” were skeptical of the story because they could not identify the victim based on the Star’s reporting.
Moreover, she asserts she did not comment to the newspapers and television about the Ohio juvenile after the IndyStar story. Rather, she has spoken to the media about the “harmful impact of the laws restricting patients’ access to reproductive and abortion care, as well as the danger that politicization of medical care poses to patients and doctors, including the publications and news programs identified in the Administrative Complaint.”
The attorney general also accuses Bernard of not complying with the mandatory reporting obligations. According to the complaint, Bernard spoke with the Ohio physician about the 10-year-old girl June 27, 2022 and performed the abortion June 30, 2022. However, the complaint alleges, she did not notify DCS until July 2, 2022.
Bernard counters she and her team “fully cooperated” with the authorities. She notified the Indiana Department of Health and DCS and she worked with an IU Health social worker who also reached out to DCS and law enforcement.