Indy doctor received 'threats' after Rokita's Fox News interview; attorneys spar in court

Indianapolis obstetrician-gynecologist Dr. Caitlin Bernard testified in court Monday that she was the target of "threats and harassment" after Indiana Attorney General Todd Rokita went on Fox News in July and said his office was looking into her conduct.

"Multiple emails, calls to my personal cell phone, to my personal email, with threats and harassment," she said Monday.

"I'm concerned not only for my reputation and what that might do to my employment, but also my personal safety," Bernard said, when asked if she was worried about a publicly-elected figure sharing information on an investigation into her with the media.

More:AG's office, Dr. Bernard's attorneys spar over patient privacy in first lawsuit hearing

Bernard was ordered to appear in court for an emergency injunction hearing as part of her lawsuit to stop subpoenas sent by Rokita's office to IU Health and other health care providers seeking information on abortion patients. Rokita started investigating Bernard after she shared an anecdote with IndyStar describing a 10-year-old rape victim from Ohio who received abortion care in Indianapolis.

"There is no defensible reason for this doctor to shatter her 10-year-old patient's trust by divulging her abortion procedure to a reporter so her traumatizing experience could be used in the polarizing abortion debate on the heels of (the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization)," Kelly Stevenson, a spokesperson for Rokita's office, said after the hearing.

Rokita's attorneys suggested through their questioning Monday they thought it was ironic for Bernard to be concerned about medical privacy when she willingly shared the 10-year-old's story with IndyStar after the high court's monumental decision on abortion rights. They said Bernard was using privacy laws as "a sword and a shield" to stop the investigation.

But during her testimony, Bernard doubled down on her assertion that she satisfied all reporting requirements, and that she didn't share any information with IndyStar that could be used to identify who the patient was. She and her attorneys say Rokita's investigation is relying on "frivolous" consumer complaints to compel the release of patient records.

"I believe that there is information in the medical record that should not be released to the attorney general given that there is no reason for that information to be released," Bernard said in court.

Investigation into another doctor has been closed

Rokita's office also subpoenaed patient information related to Dr. Amy Caldwell, another local abortion provider who is a plaintiff in the suit. The attorney general's attorneys said last week in court they had closed their investigation into Caldwell. A database of state disciplinary actions against professionals shows no disciplinary actions had been taken against Caldwell as of Monday.

Bernard's lawsuit says Rokita’s office received complaints against the doctor after the anecdote of the 10-year-old patient was picked up by national media and commented on by President Joe Biden. Many of the complaints appeared to have come from outside Indiana, according to the lawsuit, and none who complained said they had interacted with the doctor.

More:Indiana abortion doctor asks judge to freeze Todd Rokita's investigation of medical records

In July, the Indiana Department of Health confirmed that Bernard reported the 10-year-old patient's abortion and their status as an abuse victim to the state as required by law. IU Health, Bernard's employer, also said in July it performed a review of the doctor and found she was "in compliance with privacy laws."

But Rokita's attorneys said in court Bernard may have violated the standards of her profession by sharing the patient's story with IndyStar without getting the patient's authorization, or authorization from a parent or guardian.

The office said in a court brief filed Thursday that Bernard moved to quash a subpoena for patient records sent to IU Health. When the attorney general's office issued a "narrowed subpoena" that targeted redacted records including federal Health Insurance Portability and Accountability Act, or HIPAA, authorizations, Bernard moved to quash that as well.

"Dr. Bernard is determined to halt any inquiry into her conduct under the guise of protecting her patient," the office wrote in the brief.

Court exhibit: Bernard told IU social worker about abuse

During Monday's hearing Bernard's attorney Kathleen DeLaney called Mary Hutchison, a deputy attorney general who acts as the section chief of licensing enforcement, to testify. DeLaney presented an exhibit during her testimony that apparently showed Bernard consulted a social worker at IU Health on June 27 — before the 10-year-old arrived in Indianapolis for care — to ask for support with the patient.

IU Health's legal team also was informed, according to testimony. The exhibit, which has been sealed from the public, was described as referring to communications between the hospital and law enforcement.

The exhibit's contents appeared to respond to one part of the brief filed last week by Rokita's office which says hospital physicians need to report child abuse to the hospital, in addition to authorities. Hutchison said she wanted to verify the exhibit first.

More:Indiana Attorney General Rokita's office declines to share info on Dr. Bernard complaints

"I would like certified documents from the hospital showing me that's what it is," she said.

But after further questioning, DeLaney asked Hutchison if she agreed that, in light of the exhibit, there's now no longer anything left to investigate about whether Bernard satisfied hospital reporting requirements. "I can agree that this answers that question," Hutchison said.

There is still an ongoing privacy investigation into Bernard, according to court testimony. And Rokita's attorneys say Bernard may have violated state reporting laws if she didn't "immediately" report the child's abuse to Indiana authorities.

Bernard's attorneys also presented as a witness Monday Katharine Melnick, supervisor of the Marion County Prosecutor's Office's special victims unit. Melnick explained that in her experience prosecuting child abuse crimes physicians report the crime to law enforcement and child services in the jurisdiction where the crime took place, where the child resides and where the suspect is. In the case of the 10-year-old, that would be Ohio.

Law enforcement in Ohio have arrested and charged a man with rape in connection with the 10-year-old. Bernard said Monday IU Health had been cooperating with authorities in that investigation.

During the state's cross-examination of Melnick, the state's lawyers pointed out Marion County Prosecutor Ryan Mears' stance on not prosecuting abortion crimes against doctors. They also argued Bernard should have reported the child's abuse to the Indiana Department of Child Services, even though the child's abuse had been reported to Ohio's child services authority, according to testimony.

Marion Superior Judge Heather A. Welch is expected to issue a decision on the injunction request next week.

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