Caitlin Bernard, an OB/GYN at IU Health, gets emotional while defending her license to practice during a marathon hearing before medical licensing board. (Photo by Xain Ballenger/The Statehouse File)
By Marilyn Odendahl
The Indiana Citizen
May 26, 2023
Caitlin Bernard, the IU Health OB/GYN who came under fire by Indiana Attorney General Todd Rokita, has been given a letter of reprimand and fined $3,000 by the Medical Licensing Board of Indiana after she was found to have violated patient privacy laws by speaking to a newspaper reporter in June 2022 about a pregnant 10-year-old girl who was traveling from Ohio for an abortion.
The MLB imposed the sanction after a marathon hearing Thursday which convened at 9 a.m. and adjourned shortly before midnight. Seven witnesses plus Bernard testified in-person before the board and excerpts of the depositions from another three witnesses were presented. Also, multiple exhibits were introduced.
When not testifying, Bernard sat at the respondent’s table, surrounded by her attorneys and continually looking downward. A cohort of medical professionals sat in the gallery behind her through the entire hearing, some dressed in blue surgical scrubs and others wearing their white coats.
The crowd observing the proceedings noticeably thinned as the hearing stretched into the evening hours. But many more watched the live stream of the proceeding with YouTube logging 1,500 views in the morning.
The attorney general’s office alleged Bernard violated patient privacy laws and failed to comply with reporting laws by not immediately alerting Indiana authorities that the 10-year-old had been raped. Bernard’s attorneys countered the physician did not disobey any laws because none of the information she provided to the reporter identified the young rape victim and because she followed IU Health policy in reporting the abuse.
Both the attorney general and Bernard accused one another of using the Ohio girl’s story to advance their personal political agendas.
In closing arguments, the attorney general’s team advocated for the board to suspend Bernard’s license and require her to enroll in additional training regarding patient confidentiality and reporting abuse. Bernard’s legal team urged the board to find she had not violated any laws or, if they did find a violation, to not sanction her.
Board members publicly deliberated after both sides rested. They split on the finding that Bernard had not followed privacy laws but were unanimous that she did not violate the abuse reporting statutes. Although the board did discuss the possibility of putting Bernard on probation, it ultimately decided to reprimand her for three counts of patient privacy violations and fine her the maximum of $1,000 for each count.
The attorney general’s office was represented by Cory Voight, director of complex litigation and Carah Rochester, deputy attorney general along with outside counsel of Christopher Bartolomucci from Shaerr Jaffe. Following the hearing, the attorney general’s office released a statement highlighting the state had met its burden and convinced the board that Bernard had broken state and federal medical privacy laws.
“Like we have said for a year, this case was about patient privacy and the trust between the doctor and patient that was broken,” the attorney general stated. “What if it was your child or your parent or your sibling who was going through a sensitive medical crisis, and the doctor, who you thought was on your side, ran to the press for political reasons? It’s not right, and the facts we presented today made that clear.”
Bernard was represented by Hoover Hull Turner attorneys Alice Morical, John Hoover and Clara Gutwein. Neither the attorneys nor Bernard offer any statement after the end of the proceeding.
However, Bernard’s colleagues at IU Health, Tracey Wilkinson, a pediatrician, and Caroline Rouse, an OB/GYN, spoke about the hearing and what their friend has been enduring since last summer.
“I think it’s incredibly unfortunate as the intimidation of Dr. Bernard sends a message that this can happen to any physician that’s providing comprehensive, evidence-based health care to their patients,” Wilkinson said. “After sitting here for 13 hours, I can tell you that it’s still disappointing that the board came to a conclusion that Dr. Bernard did anything wrong when she was just taking care of her patients.”
The MLB has 90 days to file its final report. Then the parties will have 30 days to file an appeal in Marion County Superior Court if they want to contest the board’s ruling.
Douglas Boyle, director of legislative affairs and communications for the Indiana Professional Licensing Agency, said the letter of reprimand will not affect Bernard’s ability to practice or the scope of her practice. The letter will put a disciplinary sanction on her practitioner license and she will have to answer questions about the letter when she renews her medical license.
Protected health information
Bernard became the center of a firestorm over reproductive rights when The Indianapolis Star published a story July 1, 2022, about the 10-year-old Ohio rape victim who was having to get an abortion in Indiana because her home state had implemented more restrictive abortion laws. IndyStar reporter Shari Rudavsky overheard Bernard talking to her colleague about the case during a rally in support of reproductive care and was able to get Bernard to confirm the story.
The article gained national attention with some asserting the story was fabricated. Rokita made several public statements about Bernard, calling her an “abortion activist acting as a doctor” and saying his office was investigating her conduct.
During her testimony, Bernard said she was surprised by the story and the attention it attracted.
She said she thought the premise of the article was going to be a review of what doctors were encountering, in general, as more restrictive reproductive laws were being enacted following the U.S. Supreme Court’s ruling in Dobbs which reversed the federal right to abortion. Instead, she was surprised the story focused on the case of the Ohio girl.
Also, Bernard said she was surprised that some people thought the story was a lie and that girls are not raped.
The attorney general alleged Bernard revealed enough information to the IndyStar that the public could identify the victim. After the article ran, Voight said, everyone in the country learned her patient was a 10-year-old girl from Ohio who had been raped and was six weeks and three days pregnant.
“Your decision will impact the standard of health care in Indiana,” Voight told the MLB. “This decision will affect the foundation of trust between doctors and patients.”
Andrew Mahler, the attorney general’s expert, testified that Bernard had released protected health information about the patient and, as a result, had violated HIPAA (the Health Insurance Portability and Accountability Act). He found the OB/GYN had violated the provision in federal privacy law that prohibits medical professionals from talking about any “unique characteristics” of patients.
Bernard’s attorneys pushed back, saying the physician did not share any protected health information. They argued none of the things Bernard relayed to the reporter was classified as an “identifier” under HIPAA which includes patient names, birth days and telephone numbers.
“What matters here is not what this has turned into,” Morical said. “What matters is if Dr. Bernard shared patient information; she did not.”
Even the board members wrestled with the private information question.
During their deliberations, one member maintained Bernard had not violated patient privacy because she did not disclose any protected health information and did not have a doctor-patient relationship because she met the victim the day after she talked to the reporter. However, another took a harder view, arguing Bernard did violate HIPAA since there are not that many pregnant 10-year-olds in the country.
John Strobel, board president, said although none of the details Bernard shared fell under the protected health information category, the combination of the identifiers was enabled the public to determine who the patient was.
Asked if, in hindsight, she would still speak to the reporter, Bernard said she had thought about that a lot and was not sure. She explained she used the patient as an example, rather than making up a hypothetical example, because she wanted to help Hoosiers understand the impact of abortion laws so they could make their own decisions about what to support and oppose.
“It’s important for people to know the effect of these laws,” Bernard said. “Even children are harmed by them.”
Tattoos and dicta
The attorney general filed the administrative complaint against Bernard in November 2022. In April, the state’s top attorney tried to get the hearing delayed until August but the MLB denied the request.
At the start of the Bernard hearing, Bartolomucci again tried to get a continuance by submitting a motion to compel. The attorney wanted the board to force Bernard to answer six questions that her attorneys advised against providing a response during her deposition. The questions included whether she had a tattoo of a coat hanger with the words, “Trust Women,” and what the name of the Ohio physician was who had referred the 10-year-old to Bernard.
Morical objected, saying Bernard had answered hundreds of questions during the five-hour deposition. She said the inquiry about the tattoo was irrelevant to the proceedings and only meant to harass and slow down the process.
Strobel asked what could be done with the answers since the hearing had already begun. Bartolomucci replied more time for an analysis would be needed and asked for a continuance.
The board did not delay the hearing and did not allow the attorney general to ask the six questions.
Later in the proceeding, the board did grant Bernard’s motion to enter into the record an order from Marion County Superior Court Judge Heather Welch.
The order was issued in the lawsuit brought by Bernard to stop the attorney general’s investigation of her actions. In December 2022, Welch denied the plaintiff’s motion for a preliminary injunction but found Rokita, himself, had violated state confidentiality laws by making multiple public statements against Bernard following the publication of the IndyStar article.
Morical told the board members, the order was nonbinding but it would provide additional information for their deliberation. Bartolomucci objected and referred to the statements Bernard’s attorneys made during the circuit court hearing that the language about Rokita’s conduct was dicta and it did not matter.
The attorney general was also unable to persuade the MLB that Bernard had failed to properly report suspected abuse of the 10-year-old girl. Pointing to state statute, the attorney general asserted Bernard did not report the incident to Indiana law enforcement and the Department of Child Services as she was required to do.
As a result, the attorney general inferred, the victim was released from the hospital and returned to her home where the alleged rapist was still living.
Bernard’s attorneys said the OB/GYN had followed IU Health protocol by reporting the suspected abuse to the hospital’s social worker. The social worker then alerted the police and child protective services in Ohio. Following the medication abortion, Bernard filed a termination of pregnancy report with the DCS and the Indiana Department of Health.
Morical told the board the statute says “local law enforcement” has to be notified immediately but does not specify Indiana authorities. The law has been interpreted to mean that “local” refers to the location where the abuse occurred which, in this instance, is Ohio.
Also, Morical asserted IU Health’s reporting policy aligns with the state statute and DCS, which has reviewed the policy and not found any problems.
“Dr. Bernard complied with IU Health policy and that policy aligns with state law,” Morical said
Voight countered, “everyone had a duty to report suspected child abuse” and the IU Health policy did not exempt Bernard from her “personal duty” to report.
“It’s about making sure doctors don’t put politics before patients,” Voight said. “It’s about reporting child abuse.”
However, Morical noted, the attorney general did not include on its witness list a DCS official or representative to support its position.
The board expressed concern that the girl had to live with the perpetrator for five days before he was arrested. But they agreed with board member Bharat Barai, M.D., who reiterated the testimony that Bernard had informed the social worker at 4 p.m. the day she met the patient and the social worker informed Ohio law enforcement at 4:30 p.m.
“What more could she do,” Barai asked.
Although Bernard was not found to have violated reporting laws, Rokita was happy with the outcome.
“We appreciate the Medical Licensing Board’s extraordinary time and consideration. My team did a great job getting the truth out,” Rokita stated. “Caitlin Bernard was found liable for violating state and federal patient privacy law on three separate counts.”
Wilkinson and Rouse said they were relieved the MLB found Bernard did not violate the reporting laws but they worry what might be coming next.
“This sends a message to all doctors everywhere that political persecution can be happening to you next for providing health care to your patients,” Wilkson said. “…I think the one lesson I would say is that you have to be incredibly brave and incredibly committed to your values and the things that you stand for because what happened today could happen to any of us.”
(Kyra Howard, reporter for The Statehouse File, contributed to this report)