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."
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.
ALSO noting that this is my very first live-toot of an event. It's going well! Thanks, Fediverse community - especially my #HoosierSocial and #HoosierMast peeps!
(Improvement from birdsite: the edit button for my frequent typos as I pound these out as fast as I can.)
ANOTHER NOTE while they deal with unrelated matters.
AG Rokita's direct referral of this matter to the licensing board is itself anomalous. Not sure if we have other examples of an Indiana AG personally referring a physician in this way? I'll look into that and followup.
But it's definitely unusual and indicative of Rokita's general approach to this case -- which has been to find every available avenue to harass Dr. Bernard and showboat on this one particular case.
And again - the heart of this matter is that Bernard gave a lawful abortion to a 10 year old rape victim because she couldn't get one in her home state - due to a ban similar to the ban passed that very year in Indiana shortly after the incident.
IMO the Indiana AG is personally involving himself in this matter because he wants to position himself publicly as pro-life to further his political career.
This matches the character he has shown throughout his tenure.
Back underway - coming in late again (sorry, other work keeps interrupting me.)
Live link has moved to here:
https://www.youtube.com/watch?v=evSy1YZxyfg
Question about how a reporter makes the determination that this was important information for the public.
Response "I don't mean to be rude... but when multiple individuals say that the child is fictional and that this doesn't happen." ... it's a little fuzzy but my general impression is that reporter's response focuses directly on the fact that AG office and other politicians were claiming, at the time, that this incident didn't happen at all - and that she and Bernard lied.
AG office continues to object about the AG press release being used in evidence.
Defense responds that there is already testimony about the exhibit. It's admissible because it's an relevant statement from a party to the case. The patient was located - not because of Bernard or the reporter's statement, but because of Rokita's political conduct.
Onto another witness - having GREAT difficulty decoding the super fuzzy article.
Appears to be a medical colleague - being questioned about what information she may have shared with him and whether that was for the purpose of getting medical advice or an improper sharing of information.
Reading out quotes from Bernard's rally speeches to establish her as an activist.
THE TATTOO COMES BACK lol. "Do you have a tattoo of a coat hanger on your body."
"The state has charged that Bernard has shared protected health information. Whether or not she is an advocate for reproductive rights is not relevant." - Not exact quote.
Board agrees and sustains the objection to the tattoo question.
DIRECTLY asking for the name of the Ohio physician.
Objection that the witness asked for her ID to be protected, and that the state never asked for it during discovery.
The board is asking AG how the identity of the physician is germaine.
AG indicates that they could've spoken to the physician before this hearing.
To repeat: The AG had the opportunity to ask for this information before the hearing and did not.
"We didn't have time to do a discovery dispute letter."
L O L
This is supposed to be a big deal case for you, brosky. Get it done.
State concedes that knowing the name of the physician would not help the case today.
Objection is sustained - with a note that it could be raised on appeal if an appeal happens before the board.
Line of questioning continuing around whether or not Bernard *personally* reported.
Her answer is that she did. In accordance to IU Health policy.
This line of questioning appears to be simply designed to fish for some kind of violation that has already been established hasn't happened.
"Your understanding that IUHealth's policy is not Indiana law."
[defense registered objection]
Bernard:
"My understanding is that policy is made in conjunction with " ... the state, legal services, DCS, and that it is compliant with Indiana law.
OMG AG counsel is literally mocking her tone in quoting from depo.
Nasty.
AG is handing Bernard an exhibit - which is DCS policy 3.01.
Respondent objects to Bernard being asked to comment on a policy. There is no DCS witness. She's not bound by DCS policy. She's testified that she's never reviewed DCS policy.
AG quoting from DCS policy requiring that abuse allegations be referred to a DCS local office.
Again - there is no indication the Bernard is bound by DCS policy in any way. This would address how DCS itself deals with allegations - not how a physician would.
State's exhibit three being handed to Bernard. It's a TPR (terminated pregnancy report). Asks where in the report it indicates the child was abused. (Bernard does so).
Bernard breaks into tears when discussing how she may have mistaken the age of the girl when filling out the TPR. Mentions that she may have been thinking of another example of a young girl being abused.
Kit Malone