Indiana Medical Licensing Board Rules Bernard Violated Patient Privacy Laws
By Casey Smith
Indiana Capital Chronicle
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 board declined to take action affecting Bernard’s license, though. She had never been disciplined by the board before Thursday.
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.”
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, or 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.
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.
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.
“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 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.
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