Indiana Capital Chronicle

 Dec. 2, 2022

A Marion County judge on Friday chose not to block an investigation into two Indianapolis-based doctors who say they are being targeted by Indiana Attorney General Todd Rokita.

But while Marion County Superior Court Judge Heather Welch denied an injunction she did find that Rokita violated state confidentiality laws when he publicly discussed his office’s ongoing investigation into Dr. Caitlin Bernard.

The judge said the attorney general’s statements caused Bernard “irreparable harm” to her reputation and professional standing.

The court’s decision came two days after the Republican attorney general sent a complaint against Bernard — who is at the center of a controversial abortion case — to the Indiana Medical Licensing Board. Rokita said Bernard, an OB-GYN, “failed to immediately report the abuse and rape of a child to Indiana authorities” after performing the abortion on a 10-year-old girl from Ohio in June.

Welch said in her ruling Friday that because Rokita filed the licensure action with the Medical Licensing Board, the court “no longer has jurisdiction to make any factual findings … even for the purposes of a preliminary order.”

Bernard and her medical partner Dr. Amy Caldwell filed the request for an emergency court order last month in an attempt to block Rokita’s office from accessing patient’s medical records. Lawyers for the doctors said they’re also trying to prevent future “unchecked oversteps” by the attorney general.

Their court filing was a follow-up to an earlier complaint filed to initiate a lawsuit against Rokita.

“This is a win for patient privacy rights in the practice of medicine and for properly reporting child abuse,” Rokita said in a statement Friday. “This case is not really about abortion, despite the best efforts of those with an agenda to make it appear that way.”

Rokita violated confidentiality

Welch held an emergency hearing on the injunction request last week, following an earlier one days before that. Bernard was among those who testified in court.

Kathleen DeLaney, Bernard’s lawyer, maintained the consumer complaints that prompted the attorney general’s initial investigation are “frivolous” and that Bernard followed all legal and professional protocols.

Despite Bernard’s argument that the consumer complaints should have been immediately rejected, Welch said the doctor’s lawyers have not presented enough evidence to indicate the investigation by Rokita’s office has caused “irreparable harm.” That, in part, precluded the judge from granting an emergency injunction.

Welch additionally said Bernard has not proven that Rokita’s subpoenas for patient files — even if “overly-broad” — constitute “irreparable harm.”

But Welch made clear that Rokita did violate the state licensing statute’s confidentiality provision “by discussing the statutorily confidential investigation in statements to the media” before he filed the complaint against Bernard with the Medical Licensing Board.

“The Court further finds that the public disclosures by the Attorney General regarding the investigations prior to the Attorney General’s recent referral of the matter to the Medical Licensing Board constituted irreparable harm per se and that the Attorney General clearly violated Indiana law when discussing the confidential investigations in the media,” Welch wrote in her court order.

Welch emphasized Indiana law does not “relieve” the attorney general of his obligation to keep the investigation confidential even if Bernard, the subject of the investigation, makes it public. As a party to the complaint, Bernard is not required to maintain confidentiality about her investigation, according to state law.

“No one from the office of the Attorney General … should have made any public disclosures during an investigation,” Welch wrote.

Jurisdiction now resides elsewhere

Still, Rokita argues Bernard is at fault. He says the doctor did not properly report abuse and “failed to uphold legal and Hippocratic responsibilities” by “exploiting a 10-year-old little girl’s traumatic medical story to the press for her own interests.”

That’s despite courtroom testimony and evidence appears to show Bernard communicated with Ohio authorities even before she administered abortion-inducing medication. She also notified the Indiana Department of Child Services a few days after the abortion.

Attorneys for the state concede that Bernard submitted a terminated pregnancy report on time, but emphasized that the doctor should have “immediately” reported to Indiana DCS or local law enforcement her reason to believe that an underage patient was a victim of abuse or neglect.

The attorney general’s office said in court filings that the immediacy requirement for reporting abuse conveys “a required strong sense of urgency in action and primacy of purpose in fulfilling the duty to report.” That could mean a need to report such abuse within “hours” of first meeting with the patient.

The law doesn’t define what “immediately” means, however.

Legal documents obtained by the Indiana Capital Chronicle, as well as Bernard’s court filings, say she submitted the terminated pregnancy report to Indiana DCS within three days after the abortion.

In her email notification to Indiana DCS, Bernard indicated that the case “was already reported through DCS in Ohio.” Speaking on the stand last week, Bernard explained she communicated and cooperated with law enforcement officials in Ohio from the time she was notified by an Ohio physician seeking help with the child’s case. That was days before Bernard said she first met with the patient in-person.

The attorney general’s office told the Indiana Capital Chronicle Wednesday it will not pursue an emergency suspension of Bernard’s medical license.

In court filings, DeLaney called on Welch to stop Rokita from seeking “unlawful” sanctions against her medical license. Bernard’s legal team called the attorney general’s filing with the Medical Licensing Board an attempt to “circumvent this Court’s authority and avoid its ruling on the pending Motion for Injunctive Relief.”

Lawyers for the attorney general’s office said in a responsive court filing that the office “not only had statutory authority to file the complaint, but the duty to do so when it has evidence of possible violations of the laws governing a licensee’s profession.” Rokita’s office said Bernard, instead, is attempting to “short-circuit an investigation.”

DeLaney doubled down in a statement Friday that Rokita “violated his duty of confidentiality under Indiana law.”

“We are confident in the record and testimony that we have already developed and look forward to presenting Dr. Bernard’s evidence to the Medical Licensing Board,” she said.

It’s not yet clear when the Indiana Medical Licensing Board will take up the complaint against Bernard.

Indiana Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions:

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