Question from a board member about why Bernard could not answer the questions in depo and have their relevance adjudicated by the board.

Counsel for Bernard notes they can absolutely ask the questions today and that the question under discussion is potentially irrelevant since the board can, in fact, ask those questions.

Counsel for AG office claims that the motion is still important because they could have used those questions to prepare.

Now asking for a brief adjournment to re-depo (!!) or a continuance.

Counsel for Bernard notes that the tattoo question is harassing, and illegit question. AG believes it's relevant.

This tattoo thing is ridiculous and insane and emblematic of the way the state has handled this matter.

Board member points out that the state isn't arguing that they must be able to ask that question in depo but don't intend to ask the question in the hearing.

Bernard counsel notes that the state never sought to compel release of the name of the referring doctor or any of Bernard's text messages.

Bernard notes that AG never moved to compel to answer interrogatories about the doctor in previous proceedings when they could have and are attempting to create a distraction in this hearing, or to delay it.

This line isn't looking great for the state IMO.

On to state's motion to strike certain of Bernard's exhibits.

1. The constitutionality of AG's use of code around reporting child abuse.
2. The order given by Judge Welch that AG was improperly harassing Bernard in the media.
3. The fact that AG was forced to pay those attorney fees.

LOL

Seeking to strike those exhibits, and to exclude Marion County order in favor of Bernard.

Seeking to strike text messages and emails between Indiana and Ohio AG offices.

Seeking to strike interviews and press releases from the Indiana AG.

I imagine those texts and emails are pretty interesting.

The AGs public conduct is def at the heart of this hearing, and seems quite relevant to me.

Counsel for Bernard responds.

The defense that Rokita has already been found to have publicly violated confidentially statutes in Indiana is relevant, and they never waived that defense.

Counsel for Bernard also insists that their defenses do not rely on this, in spite of AG claims.

The defense about the request for fees is still alive, not dependant on 7, and can't be decided until this proceeding is over.

Counsel for Bernard continues:

The board has no reason to strike defenses before they are offered.

The state itself has documents from those state court proceedings that they themselves are objecting to.

Re: Documents relating to texts and emails. States did not object in discovery on this case and provided them.

They are directly relevant to the HIPAA claim.

Notes that AG 3x pressured the OHIO AG to get involved in pursuing this case.

Communications involving press release from AG following public statements by Bernard are relevant because the state is alleging that the media attention is her fault, when rather it was the AG itself creating this public media story.

This matches what ... actually happened.

Not sure how the previous motion to strike by AG went - somebody pop in if you saw it.

Counsel for Bernard appears to be arguing that an unrelated closed consumer complaint (from 2018) should not be included and is moving to strike the exhibit.

It's the state's position that an "accumulation" of complaints can have an impact, even if they are closed.

Important to note that the proposed "accumulation" amounts to 1 complaint.

We're moving on to the main event with opening statements.

AG begins.

AG is laying out the idea that this case is about patient privacy and reporting child abuse. Leaning heavily on "protecting children."

Claims that Bernard violated the law by speaking about the case to the press.

(No mention of AGs initial appearance on Fox and Friends that started the entire media circus about this.)

Claims that Bernard violated the law by not reporting the child to Indiana DCS.

The state's position would appear to be "we can go to the press, but you can not."

To stress - Bernard did not reveal private details about her patient to the press and all indications are she absolutely followed proper abuse reporting requirements.

State's opening statements lean really heavily on the publicity frenzy that the AG himself created.

Count 1: Respondent violated federal HIPAA in her interview with Indy Star

Count 2: Violated HIPAA by not de-identifying info about patient.

Count 3: Violated Indiana law by failing to maintain confidentiality by disclosing information without authorization from the patient.

Count 4: Failed to report child abuse to INDIANA law enforcement. (The rape occurred in Ohio.)

State intends to make Bernard's status as a repro rights advocate a part of this case.

It's been clear from the start that this is far more about reputational smear than about facts, and that arc is continuing in this opening statement.

From their opening statement, the state's claim of violation of privacy appears to stem from the idea that the public was able to know her age, that she was female, and that she was pregnant.

This seems like an awfully big stretch.

Lots of talk about Bernard's "brazen agenda."

I'm reminded of this photo AG Rokita posted to his social media right before appearing on Fox and friends to announce his prosecution of Bernard.

Defense.

Bernard properly reported child abuse in accord with IU Health policy and Indiana law.

Bernard's comments were not HIPAA protected health information.

IU Health did not find any violation of HIPAA in their investigation.

Dr. Bernard provides reproductive healthcare for women and children who are subject to abuse, and cares about her patients.

(I can tell you personally that this is true.)

Presenting slides clearly outlining both the Indiana statute AND the IU Health policy. Policy will be an exhibit.

Arguing that Bernard did report, according to policy, and did so lawfully under the statute - to IU Health social work.

If a physician knows that a report has already been made there is no further reporting requirement.

A report had already been made.

In terms of the state's argument that it must have gone to "Indiana Law Enforcement' -- the abuse is to be reported where it is occured. In this case it occured in Ohio and a report was made in Ohio.

IU Health social workers were the proper place to report, and they are best placed to respond and work with local authority.

DCS has had an opportunity to weigh in on IU Health reporting policy and has never once challenged it.

If the policy itself violated the law - it would be improper to prosecute Bernard, it should be the hospital itself.

Defense continues: Physicians CAN share patient information. Conversations with reporters are not inherently improper, and are only violations if improper private health information is shared. It was note.

Bernard is suited to talk publicly and be a spokesperson for family planning and reproductive care. It is not improper for her to be so.

As folks file in - some commentary.

(Grain of salt: I'm not a lawyer, but I watch many hearings and I work directly in policy analysis on topics impacted by these proceedings.)

I don't see a case being built by the AG. It seems straightforward that we're not looking at a violation of HIPAA, nor the abuse reporting statutes.

The rest of case seems to hinge on thinly veiled questions of character and Bernard's status as a public advocate for abortion rights. Those are not evidentiary claims.

Also importantly, the AG has slow rolled this entire proceeding with requests for continuance. I think this indicates that he knows there isn't much here.

How this plays out in the Medical Board is of course still up in the air.

Relevant:

"Two of the board's seven members, all of whom are appointed by the governor, have given in total more than $25,000 to Rokita's campaigns."

https://www.indystar.com/story/news/local/2023/05/24/todd-rokita-prosecution-abortion-doctor-caitlin-bernard-medical-board-hearing/70248885007/

We are calling back to order after the break. Opening with some unrelated business.

Again, you can follow the #CaitlinBernard hearing by video here:

https://www.youtube.com/watch?v=Zvk8VSmV8gs

I suspect we are going to soon be getting down to witnesses.

#HoosierMast #INLEGIS #Abortion