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By Marilyn Odendahl

The Indiana Citizen

September 15, 2023

Sixteen days after declaring “we won” in its fight against Indianapolis OB/GYN Caitlin Bernard, Indiana Attorney General Todd Rokita’s office has filed a lawsuit against IU Health and IU Healthcare Associates, claiming the health-care provider violated patient confidentiality laws related to Bernard’s treatment of a 10-year-old rape victim from Ohio.

The complaint, filed Friday in the U.S. District Court for Southern Indiana, alleges IU Health failed to comply with patient privacy laws and the Health Insurance Portability and Accountability Act (HIPAA) in the public statements it made about the hospital’s internal investigation into Bernard. Rokita’s office is asking the court to stop the health-care provider from “continuing to violate HIPAA,” and award damages along with attorney fees and costs.

“Doctors and all health care professionals should be able to rely on their employers and patients should be able to trust their doctors,” Attorney General Todd Rokita said in a press release announcing the lawsuit. “When a hospital or other healthcare provider makes your private medical information public, that trust is decimated. As a result, the quality, delivery, and sustainability of our healthcare is significantly weakened.”

In a statement issued Friday, IU Health maintained it follows medical privacy laws.

“At IU Health, we hold ourselves accountable every day for providing quality healthcare and securing privacy for our patients. We continue to be disappointed the Indiana Attorney General’s office persists in putting the state’s limited resources toward this matter. We will respond directly to the AG’s office on the filing.”

The allegations in the lawsuit stem from Bernard performing an abortion last summer on the 10-year-old girl. Ohio physicians had contacted the Indiana doctor for help in treating the patient because, at that time in the weeks after the U.S. Supreme Court overturned Roe v. Wade, the Buckeye State had implemented a near-total ban on abortion.

 A reporter from The Indianapolis Star overheard Bernard discussing the case with a colleague at an abortion rights rally. After confirming the information with Bernard, the reporter published her story in July of 2022.

A media firestorm ensued and Rokita gave interviews and news conferences where he described Bernard as an “abortion activist acting as a doctor” and alleged she had a history of failing to report abortion procedures, as required by state law. He also publicly stated his office was conducting, an investigation into her conduct which caused several members of the legal community to call for him to be sanctioned by the Indiana Supreme Court Attorney Disciplinary Commission.

 Rokita then filed a complaint against Bernard with the Medical Licensing Board of Indiana. In May, the board held a nearly 15-hour hearing and determined Bernard had violated patient confidentiality in the Ohio abortion case by publicly confirming the age, home state, and medical procedure performed. However, the board also found that Bernard had followed reporting requirements.

She was reprimanded and fined $3,000.

On Aug. 30, Bernard announced she would not be appealing the board’s ruling.

“My time and energy are much better spent providing healthcare to Hoosiers now living under the recent abortion ban in our state and in the broader fight for reproductive healthcare,” Bernard said in a statement, explaining her decision not to appeal.

Rokita also released a statement, declaring in part, “we won the case.”

The copy of the lawsuit was released from the attorney general’s office Friday before the complaint even appeared on the docket of the Southern Indiana District Court. The complaint quotes from depositions and from testimony given before the licensing board.

Asserting, “Rather than protecting the patient, the hospital chose to protect the doctor,” the lawsuit notes IU Health told the media it had conducted a review and found Bernard in compliance with privacy law. Also, after the licensing board’s ruling, IU Health issued a statement affirming Bernard would remain a member of the medical team and saying it did not agree with the ruling.

The lawsuit contends that that statement “ratified Dr. Bernard’s disclosure to The Indianapolis Star, which undermines the Medical Licensing Board’s guidance regarding the type of conduct which is prohibited under HIPAA and Indiana’s patient confidentiality rules.”

The case is State of Indiana Ex Rel. Rokita v. Indiana University Health, Inc.; and Indiana University Healthcare Associates, Inc. d/b/a IU Health Physicians, 1:23-cv-1665.

 Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal. 

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