The doctor says she shouldn’t have to give out patients’ abortion records

An Indiana doctor who aborted a 10-year-old rape victim has asked a judge to stop the Indiana attorney general from accessing patient records as part of an investigation into consumer complaints her attorneys have called “sham.”

Lawyers for Caitlin Bernard, an Indiana University School of Medicine affiliated obstetrician-gynecologist, and Indiana Attorney General Todd Rokita (R), met Friday for an emergency hearing to determine whether a subpoena for the 10-year-old’s medical records Patients are to be admitted while a lawsuit aimed at permanently shutting down Rokita’s investigation unfolds.

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Bernard’s attorneys said Rokita’s efforts to obtain the patient’s medical records was a worrying violation of the patient’s privacy that, if allowed, would shake trust in doctors’ and patients’ confidentiality. The state countered that Rokita’s office has access to the records while it investigates complaints alleging Bernard’s professional misconduct.

Friday’s courtroom argument began four months after Bernard made headlines for treating the 10-year-old rape victim, who was forced to seek an out-of-state abortion because of Ohio’s six-week abortion ban immediately after Roe’s crackdown v. Wade came into effect. Since then, legal battles have intensified and become more politicized as the landscape of abortion access in the United States continues to change.

The hearing is scheduled to continue on Monday. Both sides raised medical privacy issues on Friday, but with significantly different approaches.

Four experts testified for the plaintiffs on professional ethics and patient privacy. They spoke specifically about the implications of third-party complaints that subpoenas of sensitive medical records are allowed to trigger.

“Very specific information is being requested,” said witness Kyle Brothers, a University of Louisville pediatric bioethics expert who reviewed a civil investigation request from Rokita’s office, which is shielded from the public. According to the Indianapolis Star, the brothers described the request as looking for information such as medical records, names, addresses and other documents.

“This type of disclosure, especially for minors, is just heartbreaking,” he said, speaking of how disclosing such specific medical information could affect a patient.

Rokita claims that it was Bernard who violated her patient’s privacy when she mentioned the case to an Indianapolis Star reporter; As part of a story about patients traveling across state lines to access an abortion, Bernard shared an anecdote about how the 10-year-old rape victim was referred to her by a “child abuse doctor” in Ohio.

Bernard’s attorney, Kathleen DeLaney, told reporters at a news conference after Friday’s hearing that experts agreed it was routine and acceptable for doctors to discuss patient cases in an “unidentified manner,” using names, dates of birth, place of residence, or other specific identifiers details would be omitted.

“Several of our witnesses today have pointed out … that keeping track of patients’ entire medical records is itself a HIPAA violation,” DeLaney said. “None of the patients complained about the care they received; he has not challenged his medical care in any medical proceeding or judicial proceeding.”

The Health Insurance Portability and Accountability Act (HIPAA) restricts what medical information can be shared without patient consent.

DeLaney’s final point is an important part of the lawsuit filed Nov. 3 by Bernard and her medical partner Amy Caldwell against Rokita, alleging he failed to perform his statutory duty of care to investigate whether Complaints against Bernard and Caldwell were justified.

The lawsuit argues that Rokita invokes “face-to-face consumer complaints to justify multiple, duplicate, and over-the-top investigations against law-abiding doctors.”

“The consumer complaints came from people who had heard about the situation on TV or through social media,” DeLaney said at Friday’s news conference.

When the story of the 10-year-old Ohio rape victim became national news and was even mentioned by President Biden when condemning the US Supreme Court’s overthrow of Roe, Rokita publicly announced that he would investigate Bernard for possible wrongdoing.

Appearing on Fox News less than two weeks after the Indianapolis Star story was published, Rokita described Bernard as “this abortion activist who acts as a doctor,” and he claimed without evidence that she had a history of failing to contact the proper authorities .

“We’re gathering the evidence as we speak and we’ll fight it to the end, including examining her license,” Rokita said. “If she didn’t report it in Indiana, it’s a felony — not to report, intentionally not reporting.”

Bernard and her attorneys said she complied with all reporting requirements under Indiana law. Her claim was bolstered by reports of Indiana abortions submitted to the Washington Post in July, showing that Bernard had duly reported performing the abortion on a raped child within the three-day period required by the state. A review of Bernard’s records found no previous complaints until the 10-year-old victim’s story was released.

According to the lawsuit, between July 8 and July 12, seven people filed complaints against Bernard. In extracts filed with the lawsuit, the complainants do not indicate that they are patients of Bernard or even Indiana residents. One falsely claimed that Bernard “was aware of the rape of a 10-year-old by authorities,” while another apparently came from an Ohio resident who inaccurately described Bernard’s experience of treating the 10-year-old as “misinformation” that aimed to belittle Ohio and demean “pro-life” supporters. Another complaint simply attached the results of a search engine query.

Bernard, who is expected to testify Monday when Rokita’s attorney calls her witnesses, said in a statement after Friday’s hearing that her commitment to ethical patient care includes protecting patient privacy.

“Make no mistake, the intent of this so-called investigation is to silence doctors who are providing abortion treatment and to scare people who are seeking abortion treatment,” Bernard said.

Deputy Attorney General Patricia Erdmann told reporters after the hearing that “the Attorney General’s office will be discussing its court filings.” In a brief statement after the hearing, Rokita’s office said it will “continue to advance this litigation to ensure the privacy of every Indiana patient is protected.”

A final decision on the injunction is expected next week.

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