Here’s what to expect from likely appeals in the licensing litigation against local OB-GYN

A lengthy appeals process could play out following a state regulatory decision last week to sanction an Indianapolis OB-GYN in a divisive abortion case. 

The Indiana Medical Licensing Board ruled that Dr. Caitlin Bernard violated state and federal patient privacy laws when she publicly discussed a 10-year-old rape victim seeking an abortion in Indiana. 

But a longtime healthcare attorney said it’s unlikely that a judge will overturn the board’s decision unless there’s a legal matter in question — not a medical one.

Neither Bernard nor the Indiana Attorney General’s Office has filed an appeal yet. Both parties must wait to do so until the board finalizes its order, which could take up to 90 days after the May 25 hearing. 

After that, each side has 30 days to appeal the decisions to the Marion County Superior Court.

Alice Morical, Bernard’s attorney, said in a statement Wednesday that “as we await the written decision in this case, we are exploring all options for our next steps including using all legal tools possible.”

Still, appeals of licensing board actions “are not common,” said David Jose, who has spent decades representing numerous doctors before Indiana’s Medical Licensing Board. Such appeals are expensive and time consuming — taking upwards of two years in some cases.

“There’s a lot that goes into decisions like this — to appeals,” Jose said. “It’s not as simple or black and white, because there are a lot of positive and negative factors with these sorts of situations. It’s important to have that appreciation for all of the things that weigh against or in favor of pursuing an appeal.”

How appeals could play out

The matter stems from an ongoing legal saga surrounding the doctor, who last year oversaw the medication abortion for the girl.

Republican Attorney General Todd Rokita sent a complaint against Bernard to the board in November. He maintained that she “failed to immediately report the abuse and rape of a child to Indiana authorities” after performing the girl’s abortion.

He also argued that Bernard “failed to uphold legal and Hippocratic responsibilities” by “exploiting a child’s traumatic medical story to the press for her own interests.”

The board sided with the state on some charges, agreeing that Bernard violated patient privacy when she shared information that could identify the 10-year-old patient.

Board members deemed Bernard did not improperly report child abuse, however, and is fit to practice medicine.

The attorney general could appeal the board’s adverse decision to hold Bernard in violation of the child abuse reporting obligation. Bernard, on the other hand, could appeal the board’s findings that she violated patient privacy rights.

Jose noted that there are “very limited circumstances” to petition the court to introduce additional evidence, though. Instead, the superior court judge will review evidence and testimony already entered into the record during the licensing board hearing. 

“It essentially has to be newly discovered evidence that was not readily available at the time of the administrative proceeding,” he said. “That’s why your record is so important at the agency level.”

Indiana law outlining standards for judicial review requires the court to find that Bernard has been “prejudiced” by the board’s action because it’s:

1. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
2. contrary to constitutional right, power, privilege, or immunity;
3. in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
4. without observance of procedure required by law; or
5. unsupported by substantial evidence.

If there’s credible evidence to support that any of those standards have been violated, the court can remand the case to the Medical Licensing Board for further proceedings, or compel the agency “to essentially reverse” or revise its action, Jose said.

“The court might say that, procedurally, something was missed or not done properly and that it needs to be done,” he continued.

Otherwise, the court can issue a supportive finding to uphold the agency’s decisions.

“Oftentimes, the reviewing court is going to be pretty deferential to the medical licensing board when the agency is exercising its expertise in medical matters,” Jose said. “But on legal issues that are clearly more a matter of law, the court will feel less deferential, less constrained, and might order a kind of reconsideration by saying, ‘Here’s the correct view of the law, and send it back for a revised determination based upon that correct view of the law.”

After the trial court review, the parties have the right to escalate up to the Court of Appeals and the Indiana Supreme Court after that.

In an appeal, Jose said Bernard’s legal counsel might want to consider whether the Medical Licensing Board’s decisions on patient privacy violations are “more a matter of law, as opposed to a medical issue.” 

“They weren’t obviously evaluating her medical skills as a clinician, where a court would be very deferential to the medical licensing board because they’re a bunch of doctors,” he said. “On the other hand, they were issuing this decision more on the legal issues of whether this is a violation of the privacy laws And so that might be — no pun intended — more appealing for her to pursue, because a court might be more willing to step in and say, ‘No, board, you got the law wrong.’”

Continued pushback against board’s decisions

The Medical Licensing Board is made up of six doctors and one attorney, all of whom have been appointed or re-appointed by Republican Gov. Eric Holcomb.

The board is required by state law to consist of seven members, with no more than four from the same political party.

Five members must be physicians and one has to be an osteopathic physician, while the other is only obligated to represent the public. Currently, that member is a lawyer. All members serve four-year terms.

Holcomb said Wednesday he thought Bernard’s case “was handled exactly where it should have been handled, and how it should have been handled.”

“I can only speculate on the decision that was rightly handed down by that commission,” he said, referring to the Medical Licensing Board. “I think that what they were trying to convey is they want to take politics out of this, but you’d have to ask them what their true intent was.”

Board members did not take questions from reporters following the nearly 15-hour hearing last week.

Two board members faced scrutiny before Bernard’s case was heard after The Indianapolis Star reported two of the board’s members have given in total more than $25,000 to Rokita’s campaigns. The majority came from Dr. Bharat H. Barai, a Merrillville physician who over the last 17 years has contributed $24,800 to the attorney general during his various runs for state office and Congress.

Barai during the hearing was Bernard’s most vocal supporter.

The other board member, Evansville-based Dr. Heidi Dunniway, gave $1,000 to Rokita’s election committee in May 2018 while he was campaigning for U.S. Senate.

None of the other five other board members have given to Rokita, according to campaign finance records. 

Physicians and abortion care providers, meanwhile, continue to admonish the board’s findings and disciplinary actions against Bernard and maintain the doctor did nothing wrong.

The Good Trouble Coalition, a grassroots organization of Indiana health care providers, said it condemned the Medical Licensing Board decision and stands “in full support” of Bernard.

“Dr. Bernard has been persistently attacked over the past year for using her voice to advocate for reproductive health policies that are evidence-based and about which she has particular expertise. This precedent leaves all doctors open to persecution by politicians who do not have medical training or an ethical obligation for advocacy,” the coalition said in a written statement. 

“We, who have the most expertise, knowledge, and experience, are obligated to ensure access to healthcare, resources, and evidence-based therapies. Even if those healthcare decisions are unpopular to some.”

Dr. Tracey Wilkinson, who attended Bernard’s hearing, added that the board’s decision will likely have a chilling effect for doctors and abortion care providers.

“This sends a message to all doctors everywhere that political persecution can be happening to you next for providing health care to your patients,” she said after the hearing.

Another colleague, Dr. Caroline Rouse, said “it’s terrible” that medical providers feel like they can’t speak out on certain issues.

“As physicians, we … are just trying to do the best things for our patients and their families. And this decision really calls into question our ability to do that,” she said. That was after Rouse spent more than half a day “listening to our friend and our colleague be put on trial for taking care of her patient and providing evidence-based health care, and that is incredibly demoralizing as a physician.”