Judge delays ruling on doctors’ request for emergency injunction against AG Rokita

A Marion County judge is considering whether to block Rokita from accessing an abortion patient’s records

By: - November 18, 2022 1:32 pm
doctors

Patricia Orloff Erdmann, chief counsel for litigation at the Indiana Attorney General’s Office, speaks to reporters Friday outside the Marion County Superior Court in Indianapolis. (Casey Smith/Indiana Capital Chronicle)

Lawyers for two Indianapolis-based doctors maintained in court on Friday that they are being targeted by Indiana Attorney General Todd Rokita, who they say is trying to use “frivolous consumer complaints” to gain access to patient medical records.

Legal counsel for Rokita’s office pushed back, however, arguing that one of the doctors violated patient privacy laws and failed to alert authorities fast enough about child abuse.

The court matter stems from an emergency order filed by Dr. Caitlin Bernard — who performed an abortion on a 10-year-old girl from Ohio in June — and her medical partner Dr. Amy Caldwell.

Lawyers for the doctors said they are trying to block Rokita’s office from accessing the abortion patients’ medical records, and also prevent future “unchecked oversteps” by the attorney general.

Marion County Superior Court Judge Heather Welch held an emergency hearing Friday after the doctors filed their complaint earlier this month — and then an emergency court order last week — seeking to stop Rokita from accessing the medical records of patients from Bernard and Caldwell’s office.

Neither Rokita nor Scott Barnhart, director of the attorney general’s Consumer Protection Division who is also a defendant in the legal filing, were present Friday in court proceedings. Bernard and Caldwell were also absent. All were instead represented by their legal counsel.

Friday’s hearing lasted about 2 1/2 hours and both sides gave their opening arguments. The doctors brought three experts to the stand. The judge has yet to rule on the plaintiff’s motion for a preliminary injunction. Both parties are due back in court Monday for additional testimony. Welch said she anticipates making a ruling shortly after that hearing.

Doctors say Rokita is wrongly seeking confidential files

In July, Bernard told the IndyStar she performed an abortion on a 10-year-old rape victim who couldn’t access care in their home state of Ohio following that state’s abortion ban. In response, several conservative figures claimed the doctor was fabricating the story or, at the very least, hadn’t filed the proper paperwork.

A terminated pregnancy report released the next day documented the abortion care received by the girl and an arrest in Ohio soon followed.

But according to Bernard’s lawsuit, Rokita continues to pursue a “baseless investigation” into her office, expanding his inquires to Caldwell. The doctor claims that Rokita used complaints filed against her — after Bernard’s story went public — to launch an investigation into her practice, even though none of the complainants had received care from Bernard, and several didn’t live in Indiana. 

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2022-11-03 Bernard_Caldwell Complaint FINAL

 

Kathleen DeLaney, Bernard and Caldwell’s attorney, noted in court on Friday that several of those complaints simply quoted news reports as the basis for the complaint.

DeLaney pointed to Indiana law, which stipulates that the attorney general should not proceed investigating until determining the complaints have merit.

“We have the highest legal officer in our state, an elected official, violating the very statute that he purports to support,” DeLaney said. “We are here for one reason — to ensure that Attorney General Rokita and Director Barnhart, no less than every other Hoosier, follow the law.”

Attorney Kathleen DeLaney speaks to reporters via Zoom on Friday following court proceedings. (Casey Smith/Indiana Capital Chronicle)

DeLaney further emphasized the need for privacy with the medical records in question, since public disclosure could mean patients could be harassed for receiving abortion services in the past.

Dr. Kyle Brothers, a Louisville-based pediatrician and bioethicist who testified in court on Friday, said patients can become hesitant or avoid necessary medical care altogether if they fear their medical information will be provided to the government.

While Brothers said that’s part of why doctors have a duty to keep patients’ records private, he added that it’s acceptable — common practice, even — for doctors to share “de-identified” patient information. That’s the kind of information Bernard shared with the media, he continued.

But the language in Rokita’s civil demand for patient records is not asking for de-identified patient files, Brother said. Rather, the attorney general is seeking confidential information, including specific names, addresses, documents and medical charts.

“This kind of disclosure, especially for a minor, is heartbreaking — horrible,” Brothers said. “This is very sensitive information. This is really difficult for an individual patient, and for a whole world of patients who learn about this kind of (disclosure).”

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Defendants' Brief in Opposition to Plaintiffs' Motion for a Preliminary Injunction

 

Still, attorney’s from Rokita’s office maintained that the only reason the 10-year-old patient’s case garnered attention in the first place is because Bernard approached the media.

“That recount from Bernard herself, not the defendants, is what led the child in this case to be revealed,” said attorney Caryn Szyper, arguing for the state, adding that Bernard should have first obtained written authorization from the patient or a guardian, allowing her to legally share protected health information to the media.

Rokita’s counsel additionally called Caldwell’s claims “moot,” saying the attorney general’s office has concluded its investigation relating to the doctor.

DeLaney told reporters Friday afternoon that her office first learned that fact on Wednesday via a letter from Rokita’s office.

“That does not mean that Dr. Caldwell is no longer a proper party to the case because there’s nothing to keep the (attorney general’s) office from issuing a new subpoena tomorrow under a new consumer investigation for who knows what,” DeLaney said. “It’s a recurring problem, and we believe that Dr. Caldwell still has standing. She has not been removed from the case at this point, and we don’t expect that she will be.”

Did Bernard report abuse quickly enough?

But Rokita’s office also shifted its argument in court on Friday to questions surrounding Bernard’s “timely” notification to law enforcement about the 10-year-old’s abuse.

Attorneys for the state concede that Bernard submitted a terminated pregnancy report on time, but emphasized that the doctor should have “immediately” reported to the Department of Child Services (DCS) or local law enforcement her reason to believe that an underage patient was a victim of abuse or neglect.

The attorney general’s office said in court filings that the immediacy requirement conveys “a required strong sense of urgency in action and primacy of purpose in fulfilling the duty to report.” That could mean a need to report such abuse within “hours” of first meeting with the patient. 

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Bernard Exhibit L

 

Legal documents obtained by the Indiana Capital Chronicle, as well as Bernard’s court filings, indicate that she submitted the terminated pregnancy report to Indiana DCS less than three days after administering abortion-inducing medication to the child — within the statutory deadline. 

In her email notification to Indiana DCS, Bernard also indicates that the case “was already reported through DCS in Ohio.”

“Dr. Bernard promptly and appropriately complied with the law on all reporting requirements,” DeLaney told reporters Friday afternoon. “The perpetrator is in jail. He was promptly arrested, arraigned, denied bail. So the notion that Dr. Bernard didn’t cooperate with law enforcement is simply not true.”

The law doesn’t define what “immediately” means.

What happens next

There was no decision made during the emergency hearing Friday.

Welch said she will rule on Saturday whether Bernard should be called to testify in court on Monday. 

Because Barnhart did not sit for a deposition or provide testimony on Friday, lawyers for the attorney general’s office told the court they would ensure “an appropriate person” from Rokita’s office would also be present in court next week.

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Casey Smith
Casey Smith

A lifelong Hoosier, Casey Smith previously reported on the Indiana Legislature for The Associated Press. Smith has had internships and fellowships at the Investigative Program in Berkeley, California, The Indianapolis Star, the Investigative Reporting Workshop in Washington, D.C., The Washington Post, National Geographic, USA Today and other publications. Internationally, she has reported on water quality across South America. She holds a master’s degree in investigative reporting and narrative science writing from the University of California/Berkeley’s Graduate School of Journalism. She previously earned degrees in journalism, anthropology and Spanish from Ball State University, where she now serves as an instructor of journalism.

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