Bernard To Go Before Medical Licensing Board This Month, Despite Rokita Attempt To Delay Hearing

By: Casey Smith

The Indiana Medical Licensing Board will hold a hearing later this month on a complaint against Indianapolis OB-GYN Dr. Caitlin Bernard, despite an attempt by the Attorney General’s Office to further delay the matter.

Bernard, who is at the center of a controversial abortion case, will appear May 25 and Board members will weigh whether the doctor violated professional standards.

Indiana Attorney General Todd Rokita sought to push the licensing hearing back until August and delay other deadlines. However, the Medical Licensing Board denied those requests, according to new case filings.

But the board did rule in Rokita’s favor on a separate point of contention, determining that Bernard must give another deposition — which the doctor said in earlier filings she wanted to avoid.

The matter stems from an ongoing legal saga surrounding the doctor, who last year oversaw a medication abortion for a 10-year-old rape victim from Ohio. The case became national news and was a factor in allowing a rape and incest exemption in Indana’s abortion ban.

Rokita advanced a complaint in November against Bernard to the Medical Licensing Board. He maintains that Bernard “failed to immediately report the abuse and rape of a child to Indiana authorities” after performing the girl’s abortion.

Rokita also argues that Bernard “failed to uphold legal and Hippocratic responsibilities” by “exploiting a child’s traumatic medical story to the press for her own interests.”

Contention over depositions

The licensing board held a pre-hearing conference April 27. Up for discussion were numerous, separate motions filed by both the attorney general and Bernard’s attorneys.

Earlier, Bernard requested a protective order to abstain her from further questioning by Rokita’s office.

The doctor sought to “prevent or limit” her deposition because “she has already testified on multiple occasions and produced discovery responses on these issues.”

“As such, any further deposition would be cumulative, duplicative and an undue burden,” Bernard’s attorneys said in filings with the board.

The state deposed Bernard in November shortly before she testified under oath during a preliminary injunction hearing. The doctor also provided a sworn declaration and other written responses requested by the attorney general.

Bernard’s counsel held that — in contrast to the entire day Rokita’s office said would be necessary for the doctor’s deposition — the state asked for only one hour to depose other key witnesses.

“Certainly, a deposition that imposes no limits on topics or time is guaranteed to duplicate the questions to which Dr. Bernard has already provided sworn answers on multiple occasions,” her lawyers said in an April 20 filing. “The state’s proposed, unrestricted deposition would keep Dr. Bernard away from her patients and her students to ask her questions to which she has already given an answer.”

But Rokita argued that Bernard’s “continued attempt to preclude or limit her deposition” deprives his office and the Medical Licensing Board “of the full picture of her conduct at issue.”

In oppositional legal filings, his office said Bernard has only provided “limited” or no testimony pertaining to:

• her education and training in patient privacy laws and regulations
• her understanding of her employer’s policies on patient privacy and reporting of child abuse
• her knowledge of Indiana University Health’s Risk Assessment paperwork
• her prior communications with the media and anyone who may have been in her vicinity when she talked to an IndyStar reporter about the Ohio abortion case last at a rally last year
• any communications she had with the hospital social worker who reported the case to Ohio authorities

“Considering this, her deposition is surely needed,” the Attorney General’s Office wrote.

Rokita further requested the Medical Licensing Board delay Bernard’s hearing until August 24 — six months after its initial setting.

He said the both sides needed more time to review evidence and legal documents, as well as to complete other depositions.

Bernard pushed back, saying both sides can be ready for the May hearing.

“Any delay would be harmful to Dr. Bernard who is ready to move forward and have this matter resolved,” he attorneys said in an April 26 filing. “She is eager to present evidence to respond to the State’s claims and clear her name.”

In orders issued late last month, the board ultimately rejected Rokita’s request to delay, but granted his motion to depose Bernard.

Dr. Kirk Masten, administrative law judge and Medical Licensing Board vice president, wrote that limiting questioning of the doctor would not be necessary.

Still, the board also granted another of Bernard’s motions to keep confidential any documents or written answers she submits in response to requests from the Attorney General’s Office.

Bernard had asked to keep such documents from public disclosure in the online License Litigation Portal to the extent they might contain “protected health information.” That might include responses with references to information in patient records, for example.

What happens next

Ahead of the hearing later this month, counsel for the Attorney General’s Office and Bernard must file with the board and exchange their final lists of witnesses and exhibits.

Prior to the hearing, each side is also allowed to conduct depositions. That means Rokita’s office can depose Bernard, as long as the line of questioning does not stray into facts that have been established by prior testimony or discovery responses.

The final hearing in the matter is set for May 25 in Indianapolis. Both parties agreed to allow out-of-state witnesses to testify virtually.

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 the latest filings with the state licensing board, Bernard continues to maintain that her public comments about the 10-year-old’s case were within the bounds of medical privacy rules. She also argues 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, where she practices.

– Indiana Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Follow Indiana Capital Chronicle on facebook.com/IndianaCapitalChronicle and twitter.com/INCapChronicle