Indiana Medical Licensing Board rules Bernard violated patient privacy laws
The Indiana Medical Licensing Board ruled Thursday that Indianapolis OB-GYN 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.
The licensing board deemed Bernard did not improperly report child abuse, however, and is fit to practice medicine.
Ultimately she was given a reprimand and fined $3,000 — the maximum of $1,000 per count.
“It’s somebody’s job, and somebody didn’t do it, but I’m not blaming Dr. Bernard,” said Dr. John Strobel, board president, of how the child was allowed to return home to the perpetrator.
Bernard appeared in front of board members for more than 14 hours before they decided the doctor did violate some professional standards. In contention was a complaint against the doctor filed by Indiana Attorney General Todd Rokita, who tweeted along with the hearing throughout the day but didn’t attend.
The case garnered nationwide attention and has drawn fear from health care practitioners and advocates who say it could have a chilling effect for abortion care providers.
The state sought a suspension of Bernard’s medical license. The board declined to take action affecting Bernard’s ability to practice, though. She had never been disciplined by the board before Thursday.
The matter stems from an ongoing legal saga surrounding the doctor, who last year oversaw the medication abortion for the girl. The case became national news and was a factor in allowing a rape and incest exemption in Indiana’s abortion ban.
Rokita advanced a complaint in November against Bernard to the board. He maintained that Bernard “failed to immediately report the abuse and rape of a child to Indiana authorities” after performing the girl’s abortion.
Rokita’s office 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.”
“Like we’ve said in the last year, this case was about patient privacy and the trust between the doctor and a patient that was broken,” Rokita’s office said in a statement. “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.”
Neither Bernard nor her legal counsel took reporter questions late Thursday after the 14-hour board meeting.
Allegations against Bernard
Bernard’s attorneys held that she properly reported child abuse to a social worker at IU Health, where she practices, which is consistent with the hospital’s policy and Indiana law.
They maintained that if abuse occurs in another state, that’s where it should be reported. Both Bernard and an IU Health social worker testified Thursday that the doctor made a report last summer after the abuse had already been reported in Ohio.
They also said Indiana’s Department of Child Services (DCS) has never challenged that the hospital’s policy violates Indiana law.
“I did not personally discuss anything with Indiana law enforcement in regards to this case,” Bernard conceded. But she did file a terminated pregnancy report (TPR) to Indiana DCS on July 2, two days after she met with the 10-year-old. State law requires TPRs to be submitted to the agency within three days of an abortion performed on someone under the age of 16.
But Deputy Attorney General Cory Voight said Bernard’s failure to notify Indiana’s DCS and police “resulted in a child abuse victim being sent back to Ohio to live with her abuser.”
Voight called her actions an “egregious violation” of patient confidentiality when she provided details about the case to an Indianapolis Star reporter.
“This board’s decision will affect the foundation of trust between doctor and patient, quite literally,” Voight said. “No physician has been as brazen in pursuit of their own agenda.”
Alice Morical, Bernard’s attorney, pushed back, saying what Bernard shared with the reporter was not protected health information. Even if it was, the law stipulates that sharing such information would not amount to a HIPAA violation unless Bernard had shared it “knowingly.”
“Dr. Bernard is particularly suited to speak on issues of reproductive rights. She has training and experience that makes her a very important spokesperson on these issues, and she is interviewed by the media on these health issues and has been for years,” Morical said, noting that the doctor is one one of only two complex family planning specialists in the state.
Bernard later said her training is specialized in contraception, miscarriages and abortion care.
The doctor and her attorneys also emphasized that possible identifiers — such as a patient’s age, race and date and location of their abortion — are already publicly available on the TPR.
An internal IU Health risk assessment further concluded that Bernard did not disclose private patient information to the media.
IndyStar reporter Shari Rudavsky said in a recorded deposition that she followed up with Bernard over the phone more than a week after her story was published to ask if the doctor could provide additional information on the 10-year-old patient. The call was made as the Star and other news outlets were continuing to report out the girl’s case amid backlash from some that the story was made up.
But the doctor declined to do so, Rudavsky said.
Paige Joyner, a HIPAA expert retained by Bernard’s legal team, testified that Bernard did not violate federal or state patient privacy laws.
Joyner said Bernard didn’t share any of the 18 identifiers protected under HIPAA, noting that the disclosure of an abortion isn’t protected health information.
Dr. Peter Schwartz, an OB-GYN from Pennsylvania who chairs the American Medical Association’s ethical and judicial affairs council, added that Bernard has an obligation to speak out on issues in her medical experience. At the same time, she has an obligation to respect patients’ rights and privacy. He testified that the doctor met both of those expectations “extraordinarily well.”
Still, Andrew Mahler, an expert in privacy compliance and HIPAA laws, disagreed. He said Bernard violated patient privacy when she shared information that could conceivably identify the patient.
He pointed to a line in the IndyStar article that the 10-year-old girl was on her way to Indiana, which he contended is a disclosure of the date of treatment.
Mahler also said Bernard didn’t have to say the patient was from Ohio or that she was 10 years old. Instead, the doctor could have shared that the girl was a preteen from another state.
“I don’t know that I could say that speaking to a journalist is being careful,” Mahler said.
Board members hash out charges during deliberations
During Bernard’s testimony, one board member asked how the 10-year-old girl was sent back to her Ohio home — where her perpetrator also resided, as it was later determined: “Where did we go wrong?”
Bernard said many victims live with their perpetrator long after abuse. Until an abuser can be identified, it’s up to DCS to decide whether a child should be removed from a home or directed elsewhere.
Testimony Thursday showed that Ohio child protection officials cleared the girl to return to the custody of her mother.
Another board member asked Bernard if she would have handled the interview with the IndyStar reporter any differently, with hindsight. Bernard was silent for several moments.
“I’ve thought about that a lot,” she said in response. “I’m not sure.”
Bernard added that it’s important for people to know “the effects” of abortion-restricting legislation, including how children are “harmed.” The doctor said she didn’t anticipate the newspaper’s story would be about the patient, specifically, and she has “very mixed feelings” about the end result.
She said, too, that patients like the girl from Ohio would be forced to leave Indiana if Hoosier lawmakers passed an abortion ban without exceptions. Bernard said that compelled her to speak out against such a policy last summer before the legislature convened for a special session.
“I think that it’s incredibly important for people to understand the overall impact of the laws of this country about abortion or otherwise. I think it’s important for people to know what patients will have to go through because of legislation that is being passed,” Bernard said. Giving hypotheticals — rather than real patient examples — “does not help people understand what is happening,” she continued.
Board member Dr. Kirk Masten said that reflected Bernard’s own political agenda, however.
After more than 14 hours of testimony and legal presentations, the Medical Licensing Board — made up of six doctors and one attorney appointed by Republican Gov. Eric Holcomb — spent an additional hour deliberating the complaints and Bernard’s conduct.
Dr. Bharat Barai was adamant that Bernard did not violate any laws. He said IU Health is a responsible organization that investigated the matter and found no violation.
Masten thought the opposite, saying Bernard did violate HIPAA by uniquely describing the Ohio girl to the news media. There was also no permission from the patient’s parent to release any information publicly.
“How many 10-year-old pregnant kids are there in the United States?” he asked.
Dr. Rebecca Mueller said she was somewhere in the middle, calling Bernard’s comments “an incident of passion,” fueled by strong emotions in the wake of the U.S. Supreme Court’s decision to overturn Roe v. Wade.
Strobel doubled down that a physician’s risk of harm to a patient “is greater if you talk to the media.” While it’s helpful to present real-life scenarios, the “solution” is to get consent from the patient to talk, he said.
When the board turned its discussion to Bernard’s duty to report child abuse, there was consensus that the doctor followed policy.
Board members ultimately voted that Bernard violated state and federal patient privacy laws, and that she failed to gain consent from the 10-year-old patient’s guardian before talking about the case with the media. The board cleared her of two other counts on child abuse reporting and fitness to practice.
Strobel maintained that fines — $1,000 for each of the three violations — and a letter of reprimand were appropriate. Bernard didn’t “expect this to go viral” and is a good doctor who is safe to return to her practice, he said, “but also, we as physicians need to be more careful.”
The board has 90 days to finalize the order. After that, Bernard and the Attorney General’s Office have 30 days to appeal the decision to the Marion County Superior Court.
Nearly a year of controversy
Last summer, Bernard sued to stop Rokita’s office from obtaining certain patient records related to her care for the 10-year-old, who sought an abortion in Indiana after her pregnancy progressed beyond the 6-week cutoff in Ohio.
Bernard’s legal team voluntarily dismissed the case after it transitioned to an administrative licensing action before the Medical Licensing Board. The court officially dismissed the case Nov. 12.
Rokita filed to reopen it Jan. 9 to refute a Marion County Superior Court judge’s finding that he violated state confidentiality laws. A court ruling from that case said that Rokita violated the law during a televised appearance in which he called the healthcare provider an “abortion activist acting as a doctor.” In court filings, Rokita called the judge’s order an “erroneous finding.”
Rokita withdrew his request to reopen the case in April, saying it’s no longer necessary.
In filings with the board, Bernard maintained that her public comments about the 10-year-old’s case were within the bounds of medical privacy rules. She also argued that she “could not” have knowingly violated Indiana’s child abuse reporting law because her notification to authorities was consistent with policies in place at IU Health.