Kit MaloneAG 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."
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.
"Have you ever failed to ever file a timely TPR"
Defense objects to irrelevancy.
Board sustains the objection.
The line of questioning we're on is moving to Bernard's after-the-fact statements in the press. We're admitting these into evidence now. Some conversation about which exhibit is which (it's confusing).
Defense is objecting to this, broadly but is overruled by the board.
Moving into a line of questioning about why we would keep the other Dr. names confidential while talking about her patient.
Again, it's not under issue that she made public statements. But there is no question that she violated HIPAA. This is just an attempt to push around the edges on the privacy issue.
"Why didn't you use a hypothetical instead of your patient's information?"
"I think it's important for people to understand the reality of what is happening because of legislation being passed. A hypothetical doesn't make that impact." - Not an exact quote but close.
"You don't believe talking to the reporter was a violation of your patient's privacy."
"I did not violate my patient's privacy."
Defense offers that they have nearly an hour of questions and suggests a break.
Looks like we'll be breaking for lunch. (I'm starvin')
Back in 30min
We're back with the defense - questioning their client Dr. Bernard.
"Are you familiar with reporting requirements."
Bernard: Yes. Relays her basic requirements to the court.
Sorry - had to step away.
Questioning continues - focusing on whether Bernard properly reported. She testifies that she immediately contacted their social work to provide supports and reporting.
Defense introduces exhibit H (docs produced by IUHealth in this matter) No objection from AG.
Bernard: IUHealth social work made a report to Ohio DCS, and learned that it had already been reported locally.
DCS made a plan, and cleared the patient to go home with her mother.
This long line of questioning from defense - not going to go into detail - is really just very thoroughly establishing the process used by Bernard to report abuse according to state and IUHealth requirements.
It's doing a very good job of establishing that Bernard followed the rules to the letter, when it comes to the abuse reporting issue raised by the state.
TPR is back (terminated pregnancy report referenced by AG earlier).
Noting that TPR is publicly available, and always produced. And that it contains broad information like age, sex, race, etc.
Presumably establishing that this broad information is clearly legal to share publicly.
Bringing up the repro rights rally from June 29th that Bernard attended again. Again, going over the details of her conversation with a doctor at this rally where she mentioned the patient in question.
Establishing that she did share information, but not protected health information.
Testifying that she was surprised by the media frenzy, which directed significant harassment and personal attacks her way. Touching on the accusations (ed note: stoked by Rokita publicly) that she made it up at the time.
Was also surprised that people didn't know that
Mentions that Fox news picking up the story increased the heat. (Ed. note: Rokita ran directly to Fox news with this, and used them to announce his prosecution of Bernard.)
Defense counsel raises that IUHealth produced a HIPAA breach risk assessment and admits it into evidence.
Determined the risk assessment found that no protected health information was provided because re-identification was unlikely.
Determined that at the time of the interview, patient was not identifiable, and that the provider was careful to protect the patient's identity.
[Objection from AG]
Defense: IUHealth privacy also put a sensitivity alert on the patients file, Bernard is aware and familiar with these alerts.
Once again, with this line defense is carefully establishing, as they did on the abuse issue, that Bernard carefully followed privacy law.
Defense wraps up. Prosecution preparing to redirect/cross.
AG hammering on the Star article.
Bernard sticking to her point that she never released private patient information.
"Would you agree that you used your patients information in furtherance of your advocacy." (not exact quote)
Bernard responds that she shared an example, without releasing specific patient information.
Directing attention to the IUHealth Policy
"When appropriate, the social worker or the physician will make a verbal report."
AG is intentionally conflating an OR with an AND. Bernard doesn't fall for it.
"Are you hiding behind IU Health's policies."
Objection, overruled.
This line of AG's questioning would appear to be a weird attempt to hold Bernard accountable for abuse the child might've received after the abortion was performed.
Which is strange, since DCS reporting requirements have been established as having been fulfilled.
"Speaking to a reporter is not required be law, is that correct?"
"No, I don't think there is anything in Indiana law that requires me to speak to a reporter."
L O L
Cross is finished. Board is asking questions now.
"Is it a custom to go through the social worker to report, rather than personally."
It's Bernard's impression that all doctors go through the social worker.
"I take it you were pretty upset that you were being called a liar in the press"
"That was less concerning than the threats and the verbal harassment I was receiving."
Would you agree that it's important to maintain confidentiality, even if it means being called a liar? "Yes."
"How often does this happen." "Very frequently."
Asking why the girl was sent home for five days to live with her perpetrator.
Bernard "unfortunately, it's often the case that it's unclear."
"Only DCS can remove a patient from their lawful guardian."
"If you had known about the attention, would you have handled the interview differently."
"I've thought about that a lot. I'm not sure. I think it's important for people to know the effects of these law. Including how even children are being harmed by them. I certainly didn't anticipate that this story was going to be about her."
"I have very mixed feelings about the way it was taken, and about how ultimately her address was released."
"Should you be even more restrictive of what you share?"
"I certainly think this case has brought to light the fact that even when not releasing PHI, people will use these stories and their information to their own political agendas."
I'm looking at Rokita here.
Brief questioning to Bernard to confirm that she has been trained on reporting requirements. (Yes)
Also establishing that more publicly identifying information is in the publicly available TPR than she shared with press.
Line from AG about her "political agenda."
Dr. Bernard capably responds that she doesn't think her advocacy for comprehensive reproductive healthcare is a political issue at all. But rather a public health issue for which there is medical consensus.
[Not a quote, I'm condensing]