Legal outcome murky in privacy ruling against abortion doctor Caitlin Bernard
As Dr. Caitlin Bernard weighs a legal challenge to the ruling that she violated the privacy of a young rape victim, experts say the case could be among the first of its kind to land in an Indiana state court.
"This is not a normal case," Deputy Attorney General Carah Rochester said at the May 25 hearing. “And I don't believe that in the past 10 years, there have been any medical licensing board cases that are analogous to the facts before the board today.”
Bernard’s legal team released a statement May 31 saying they were “exploring all of (their) options,” including a possible appeal of the state medical licensing board’s conclusion that she violated state and federal privacy laws when she told an IndyStar reporter about a 10-year-old girl who traveled to Indiana for an abortion.
The governor-appointed board found Bernard, an obstetrician-gynecologist, committed three violations of patient privacy laws but also found that the two other charges brought against her by state Attorney General Todd Rokita – untimely reporting of child abuse and being unfit to practice medicine – were unsubstantiated. His office, too, could choose to appeal.
Rokita's attorneys asked for the doctor's license to be suspended, but the board decided to fine her $3,000 and issue a letter of reprimand. Experts in licensing discipline said that punishment amounts to a slap on the wrist.
“In the overall scheme of things that’s a very light penalty,” said Robert E. Saint, an attorney who has represented clients in front of the board for more than 20 years.
They also told the Paste BN Network it's rare for a doctor to be brought in front of the board for violating HIPAA – a federal patient privacy law – meaning there's little to no history of cases to help estimate an outcome if Bernard appeals.
“I've been doing this for 55 years and I've never seen one” case alleging a HIPAA violation, licensing attorney David McNamar said.
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IndyStar became aware of two cases involving HIPAA. In one case, a doctor was accused of openly sharing patients’ names and diagnoses with other patients. Bernard never shared her 10-year-old abortion patient's name with the IndyStar reporter, but like Bernard that doctor was accused of violating HIPAA under a state law that says professionals can face discipline if they knowingly violate state or federal laws that regulate their profession.
The doctor was cleared, however, because the board found those disclosures were “inadvertent.”
In another case in front of the state's nursing board, a nurse who self-reported that she looked at the medical records of her husband’s ex-wife was fired by her employer for violating HIPAA. The charges against her by the Attorney General's Office don't specifically point to HIPAA, but they accuse her of violating federal and state laws governing her profession.
At the hearing last week, attorneys gave other examples of health professionals accused of violating patient privacy, though those cases centered on state law.
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One doctor was said to have given information about a patient to the patient’s brother-in-law during a counseling session, although the board didn’t issue a decision on that allegation.
Another had patient folders with patient names in his office that were visible from the waiting room. He entered a settlement agreement of indefinite probation for the patient privacy charge on top of other charges that he was prescribing controlled substances to himself and his son.
A counselor who kept his door open during a session with a patient received a letter of reprimand from the state's behavioral health board. Another counselor who talked about her clients by name with her sister was placed on probation.
None of the cases mentioned above, however, were appealed to a county court, and such appeals – which are technically called requests for judicial review – seem to be uncommon. Former Marion Superior Judge David Dreyer told IndyStar that licensing board decisions did land in his court for judicial review, but it was rare they’d be from a board that governs health professionals.
"I'm not sure that that many doctors get disciplined," he said.
Appeals could 'define the scope of confidentiality'
Depending on what a judge says, it may open the door to state appeals courts whose decisions could shape how doctors handle patient information because they create precedent that clarifies what’s legal and what isn’t in Indiana.
“The legislature ... puts these laws out there, but then they get applied to the real world,” said Laura Iosue, who investigated and prosecuted medical professionals during her eight years as an Indiana deputy attorney general. “It is kind of defining the scope of confidentiality, but that’s what legal proceedings do.”
It also hinges on whether Bernard is interested in continuing a high-profile public and legal dispute with Rokita that has been playing out for nearly a year.
“There’s no stigma attached to her as a result of (the board’s punishment) other than she violated HIPAA,” McNamar said. “But that’s up to her – does she want that still on her record? Or does she want to try and get rid of it?”
The board has 90 days from its May 25 decision to issue a final written order. From there, Bernard will have 30 days to decide if she wants a Marion County judge to review it.
Call IndyStar courts reporter Johnny Magdaleno at 317-273-3188 or email him at jmagdaleno@indystar.com. Follow him on Twitter @IndyStarJohnny