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The Indiana Medical Licensing Board has granted a request to postpone until May 25 the hearing on the administrative complaint filed against Caitlin Bernard, the OB/GYN who has been accused by the Indiana attorney general of violating state and federal laws after she performed an abortion on a 10-year-old rape victim.

In an order issued Feb. 10, the board granted the joint motion filed the same day by the attorney general’s office and Bernard’s attorneys asking the hearing to be rescheduled. Originally, the hearing had been set for Feb. 23.

The postponement comes as Schaerr Jaffe, a Washington, D.C., law firm retained by the attorney general’s office to handle the Bernard matters, has filed to appear before the medical licensing board, a development first reported by The Indiana Citizen. In a petition submitted to the board Feb. 3, attorney Gene Schaerr requested temporary admission to represent the attorney general’s office in the medical disciplinary proceeding.

The attorneys for both sides told the board they were not asking for the postponement just to delay the proceeding. Rather they said they have prepared a schedule for moving the case forward and need more time to complete the pre-hearing tasks including discovery and taking depositions.

Also, the board granted the attorneys’ request for a pre-hearing conference be conducted during its April 27 meeting.

The Indiana Citizen reached out for comment from Bernard’s legal team at Hoover Hull Turner and the office of Indiana Attorney General Todd Rokita (above).

A spokesperson for Rokita replied, “First and foremost, it is a doctor’s legal and ethical duty to keep patients’ information private, unless specifically authorized. This case is not about abortion, despite the best efforts of those with an agenda to make it appear that way. Attorney General Todd Rokita and his office will continue to fight for patients’ rights and safety in this and any other situations. The continuance was mutually agreed upon by both sides.”

In a statement, Hoover Hull reiterated the reason for the continuance.

“Last week we filed a motion for continuance jointly with the State of Indiana for Dr. Caitlin Bernard’s hearing before the Medical Licensing Board,” Hoover Hull Turner stated in an email. “This joint filing asks the Medical Licensing Board for the hearing to be held on May 25, 2023 and was not made for the purpose of delaying the hearing, rather to allow for additional prehearing business to be done, including written discovery, exchanging of witness and exhibit lists, and depositions. The entire legal team will continue our work defending Dr. Bernard’s medical license and her dutiful work as a physician serving her patients.”

Rokita filed a complaint with the medical licensing board Nov. 30, 2022, alleging Bernard violated her professional obligations as a licensed physician. The filing is based on consumer complaints his office received after Bernard confirmed to Indianapolis media in the summer of 2022 that she had been contacted by Ohio authorities about providing abortion care to a 10-year-old who became pregnant as the result of a rape.

Rokita alleged Bernard did not immediately report the child abuse to the Indiana Department of Child Services and local law enforcement as required by state law. Moreover, he accused her of violating federal and state patience privacy laws by speaking publicly about the matter without obtaining written consent to release the minor’s medical information.

In an answer filed with the board Dec. 27, Bernard stated she complied with patient privacy laws and reporting requirements. The redacted response maintained the doctor made the appropriate notifications as required to DCS and the Indiana Department of Health. In addition, she notified an Indiana University Health social worker who contacted law enforcement as well as child services.

Also, Bernard denied she violated privacy regulations under the Health Insurance Portability and Accountability Act of 1996 and Indiana state law. At the time she confirmed the information with the media, she had not begun a patient-practitioner relationship with the rape victim and the information she knew came solely form the referring doctor. Further, she did not share any of the minor’s identifiable health information with the public.

The attorney general is asking the medical licensing board to impose the “appropriate disciplinary sanction” but does not recommend any specific action. Under Indiana statute, disciplinary sanctions range from a letter of reprimand to the suspending or revoking of the professional license.

As Bernard is facing disciplinary action so is Rokita.

Last summer and fall, the attorney general spoke repeatedly about Bernard and his allegations of wrongdoing to state and local media. The doctor filed a lawsuit to prevent the attorney general from making further public comment and while the Marion County Superior Court denied the attempt to muzzle the state’s top lawyer, it did find Rokita, himself, violated confidentiality laws by talking publicly about his office’s investigation into Bernard.

After several members of the legal community also raised concerns about the attorney general’s actions, the Indiana Supreme Court Disciplinary Commission has opened an investigation into Rokita.  – Marilyn Odendahl

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