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Judge may order Dr. Caitlin Bernard to testify Monday in effort to block AG Rokita's access to patient records

Caitlin Bernard and Todd Rokita.png
Posted at 10:22 AM, Nov 18, 2022
and last updated 2022-11-18 10:22:21-05

INDIANAPOLIS — Marion Superior Court Judge Heather Welch said she may order an Indiana doctor who performs abortions to testify Monday before she rules on an emergency injunction barring Indiana Attorney General Todd Rokita from accessing private patient medical records.

Kathleen DeLaney, an attorney for the doctor, said the judge will make a decision Saturday as to whether Dr. Caitlin Bernard must testify.

Bernard was out of the country during a hearing Friday, but Judge Welch told her attorneys she may order her to appear Monday to answer questions about her statements to media concerning a 10-year-old rape victim from Ohio who traveled to Indianapolis for an abortion procedure. Those comments thrust Bernard into the national spotlight shortly after Roe v. Wade was overturned.

Rokita subsequently said in an interview on Fox News that his office was investigating whether Bernard had violated professional standards or the law by speaking about the child or by failing to promptly report the abuse or the abortion procedure.

Bernard and her medical partner Dr. Amy Caldwell have asked the judge to stop Rokita's office from accessing confidential medical records. Rokita's lawyers say they need the records to investigate whether Bernard violated patient privacy laws and other rules of professional conduct.

Lawyers for the doctors say the Attorney General's office launched its investigation on complaints filed by people with no direct knowledge of Bernard or her patients. They heard about the case through TV and newspaper reports, Bernard's lawyers said.

Lawyers for Rokita say his office needs these medical records so they can thoroughly investigate complaints against Bernard. They argued that Bernard violated medical privacy rules by telling the media about the 10-year-old's abortion.

“Our team always follows the law and pursues the truth," Kelly Stevenson, Rokita's press secretary, said in an emailed statement. "We put the highest value on patient privacy and ethical standards in medicine. We will continue to push forward in this legal battle to ensure every patient’s privacy is protected in Indiana."

Three doctors who testified Friday said giving the government access to these records would hurt the ability of medical providers to properly treat their patients.

Dr. Kyle Bertram Brothers, a University of Louisville bioethicist, testified Friday morning that forcing Bernard and Caldwell to disclose private medical records would be a "broken promise" that would damage the patient-doctor relationship.

"Its effects on the patient-doctor relationship are deeply troubling," Brothers testified.

Dr. Elicia Harris, an Indianapolis obstetrician and gynecologist, testified that doctors routinely share anonymous patient information when they discuss treatment options and seek advice. This "deidentified" medical information does not include names and other specifics that might identify the patient, Harris testified.

Dr. Tom Ledyard, a hospice and palliative care specialist who serves on a Community Health Network bioethics committee, testified that allowing a governmental agency to access confidential records would have a lasting negative impact on the medical community.

"I think that would hamper the essence of how the (doctor-patient) relationship works," Ledyard said. "Every single day I'm in the most intimate space with a patient, when they are ready to breathe their last breath.

"I can see how, if this was able to be seen by anybody at any time without some need to know," he said, "it would hamper that relationship and hamper the care they get."

Lawyers for the doctors decided not to call a fourth witness who had been prepared to testify.

Judge Welch did not rule on the injunction Friday. She ordered both sides to return to court Monday along with Dr. Bernard and a representative from Rokita's office who can answer questions about their investigation into Bernard's alleged misconduct.

Correction: An earlier version of this web story contained a error. The judge will rule Saturday on Dr. Bernard's need to testify in person on Monday.

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Read the full lawsuit filed Nov. 3 below.