INDIANAPOLIS — Lawyers for an Indianapolis doctor who aborted a 10-year-old Ohio rape victim told a judge Friday that the Indiana attorney general should not be allowed to access patient records to investigate undisclosed complaints.
dr Caitlin Bernard; her medical partner Dr. Amy Caldwell; and her patients sued Republican Attorney General Todd Rokita on November 3 to try to stop him from accessing the records. The doctors allege Rokita’s conduct “violates numerous Indiana laws,” including a state requirement that his office must first determine that consumer complaints are “substantiated” before it can investigate doctors and other licensed professionals.
The state argued it was allowed to access the records to investigate three consumer complaints accusing Bernard of improper grooming.
“100% of the consumer complaints were filed by people who met Dr. Bernard had never met the never received medical care from Dr. Bernard and who were in no way involved in the care of this patient,” attorney Kathleen Delaney contradicted a press conference after the hearing. “They’re complaining about something they’ve seen on TV or heard on social media.”
Bernard first garnered national attention after telling The Indianapolis Star about a 10-year-old girl who traveled to Indiana from Ohio for an abortion in June, shortly after Ohio’s “fetal heartbeat” law passed the colonel’s decision US Court to overthrow Roe v. Calf. Such laws prohibit abortions from the point at which cardiac activity can be detected in an embryo, which is typically around the sixth week of pregnancy.
Rokita told Fox News in July that he would investigate whether Bernard violated any child abuse reporting or abortion reporting laws. He has not made any specific allegations of wrongdoing, and court filings on Thursday indicate he is no longer investigating Bernard “for failing to comply” with the Abortion Reporting Act.
Records from The Associated Press and other news outlets show that Bernard filed her report on the girl’s abortion on July 2, which is within Indiana’s three-day reporting deadline for an abortion on a girl under 16.
A 27-year-old man was charged this month in Columbus, Ohio, with raping the girl, confirming the existence of the case, which was initially met with skepticism by some media outlets and Republican politicians. President Joe Biden expressed his sympathy for the child when he signed an executive order protecting access to abortion.
Kelly Stevenson, a spokeswoman for the attorney general’s office, said in an email that “our team always follows the law and pursues the truth — as that is the attorney general’s role.”
“We attach great importance to patient privacy and ethical standards in medicine. We will continue to advance this litigation to ensure the privacy of all patients in Indiana is protected,” she added.
But Delaney said that because of the 27-year-old man’s arrest, “the notion that Dr. Barnard did not cooperate with law enforcement is simply not true.”
Prosecutor Caryn Nieman-Szyper also questioned Friday whether something Bernard said to The Indianapolis Star violated federal laws protecting physician privacy. In particular, Nieman-Szyper refined the rules of the federal privacy law, known as HIPAA, for the Health Insurance Portability and Accountability Act, which prohibit a doctor from disclosing certain data about their patients.
“Although Dr. Bernard purports to be suing as an advocate of her patient’s privacy rights, she is the one who made her patient’s private medical journey public and thus the one who compromised her patient’s privacy,” the state wrote in court filings.
At the court hearing, the doctors’ attorneys called three doctors — two bioethicists and an obstetrician-gynecologist — who described to Marion County Judge Heather Welch that respecting the doctor-patient relationship is a cornerstone of medical care.
dr Kyle Brothers, a Louisville pediatrician, described the connection as “an agreement, a promise” and that if the government were to seize a patient’s medical records, the patient’s trust in their doctor could be broken and they could be prevented from seeking treatment to let.
“This kind of disclosure, especially for a minor, is heartbreaking or something,” he said. “Something really terrible.”
Welch plans to decide over the weekend whether Bernard, who was out of the country on Friday, will testify.
“Every patient needs to know that their medical records will not be turned over to any politician who decides to launch an unfounded investigation based on their own political agenda,” Bernard said in a statement.
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