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'Chilling effect': National experts decry decision against abortion doctor Caitlin Bernard

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Dressed in white coats, Drs. Tracey Wilkinson and Caroline Rouse were among the first to arrive at Caitlin Bernard's Thursday hearing in front of the Indiana medical licensing board. When the hearing ended nearly 15 hours later, they were among the last to leave. 

Six months after Indiana's Republican attorney general filed a complaint against the Indianapolis obstetrician-gynecologist, the board voted to reprimand and fine Bernard on Thursday, finding that she violated privacy laws in giving a reporter information about a 10-year-old rape victim.

But representatives of the medical community nationwide - from individual doctors to the American Medical Association to an author of HIPAA - don't think Bernard did anything wrong. Further, they say, the decision will have a chilling effect on those involved with patient care.

Indiana abortion case:Board says Dr. Caitlin Bernard violated 10-year-old's privacy

"This sends a message to all doctors everywhere that political persecution can be happening to you next for providing health care to your patients," Wilkinson said. 

"It's terrible," Rouse said. They'd just spent hours "listening to our friend and our colleague be put on trial for taking care of her patient and providing evidence-based health care, and that is incredibly demoralizing as a physician." 

Todd Rokita says 'trust ... was broken'

Bernard told an IndyStar reporter the patient's age, the state she was coming from, the fact that she was pregnant and her gestational age in an interview at an abortion rights rally last year. After the July 2022 story was published, Indiana Attorney General Todd Rokita went on Fox News and said his office was looking into whether Bernard violated any laws.

Bernard and her attorneys brought in witnesses - including a top ethics expert from the AMA - who said she didn't commit any violations. But she was ultimately fined $3,000 total for three privacy law charges, and will receive a letter of reprimand. The board rejected Rokita's two other charges, one alleging that she violated child abuse reporting requirements and the other that she is unfit to practice medicine.

Bernard and her attorneys said Friday that the board never identified what protected health information they feel she revealed.

Dr. Caitlin Bernard timeline:An Indiana doctor spoke up about a 10-year-old's abortion. Here's what happened since

Rokita cast the decision of the seven-person, governor-appointed medical licensing board as a victory for patients rather than a political maneuver on his part.

"Like we have said for a year, this case was about patient privacy and the trust between the doctor and patient that was broken," his office said after the decision. "What if it was your child or your parent or your sibling who was going through a sensitive medical crisis, and the doctor, who you thought was on your side, ran to the press for political reasons?"

"It's not right, and the facts we presented today made that clear," the statement said.

But health care experts who responded Friday to the board's decision saw it differently.

HIPAA author Donna Shalala: 'It's outrageous'

Donna Shalala, who helped write federal HIPAA patient privacy law during her eight years as the U.S. Secretary of Health and Human Services under former President Bill Clinton, told IndyStar Bernard did not violate the law. She thought Bernard "was very careful in what she did reveal." 

"There was just no way that she identified this patient with the information that she released," Shalala said. 

She said that actions in states around the country, like the board's finding, can deter doctors. 

"They're criminalizing the practice of medicine and they're literally asking doctors in this country to do harm," Shalala said. "This is the opposite of what they went to medical school for and what their oath is. It's the criminalization of American medicine and it's outrageous."

Previously on Rokita:Dr. Bernard tries to dismiss lawsuit against Rokita. He wants his day in court.

IU Health, Planned Parenthood defend Bernard

Bernard's employers came to her defense Friday in separate statements. IU Health said it disagreed with the board's findings on patient privacy, and Planned Parenthood described her as a victim of Rokita's "politically motivated attacks."

The AMA also published a strongly worded editorial about the case. President Jack Resneck said it was an example of how "harm to patients and our nation's public health triggered by last year's U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization continues to expand and worsen."

"That's because lawmakers, state officials and other third parties are seeking to exert their influence into the patient-physician relationship, impede access to evidence-based reproductive health services, and criminalize care based on political ideology instead of science," Resneck wrote.

David Jose, a longtime health care attorney who has defended clients in front of licensing boards for decades, told IndyStar licensure actions like this can have a "chilling effect" on how professionals share information.

One outcome will be "a greater tendency to over-report out of an abundance of caution to the authorities," he said, which can lead to "extensive" investigations.

"It just takes a lot of time and expense and it diverts providers from their mission of providing care," Jose said. He declined to comment specifically on the complaint against Bernard.

"Today is a difficult day to be a physician in the state," said Dr. Katie McHugh, an obstetrician-gynecologist who provides abortions and is a fellow with the American College of Obstetricians and Gynecologists.

But she also said what happened to Bernard isn't going to stop her from being an advocate for reproductive health care.

"This is an obligation of our profession," she said. "We are compelled to share our experiences, our interactions with people."

The board has 90 days to finalize its decision. From there, either side can appeal in Marion Superior Court within 30 days.

Call IndyStar courts reporter Johnny Magdaleno at 317-273-3188 or email him at jmagdaleno@indystar.com. Follow him on Twitter @IndyStarJohnny

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