The Indiana Disciplinary Commission, the panel that investigates allegations of attorney misconduct, has filed three charges against state Attorney General Todd Rokita, accusing him of violating confidentiality requirements during his investigation of Caitlin Bernard, MD.

The commission announced on Sept. 18 that it will pursue disciplinary action against Rokita over a string of media appearances and statements about Dr. Bernard, an Indianapolis OB-GYN, between July and September 2022. The charges accuse Rokita of causing “irreparable harm to Dr. Bernard’s reputational and professional image.”

The announcement came three days after Rokita sued Dr. Bernard’s employer, IU Health. In the lawsuit, the attorney general contends that the hospital system’s finding that Dr. Bernard complied with patient privacy laws, and its public statements defending her conduct, represent a failure to implement and enforce those laws.

In May, Indiana’s Medical Licensing Board (MLB) concluded Dr. Bernard violated HIPAA requirements and the MLB’s confidentiality rule in recounting to the Indianapolis Star the case of a 10-year-old Ohio rape victim who traveled to Indianapolis for an abortion because of Ohio’s six-week limit on abortions. Rokita’s lawsuit against IU Health contends the system’s public statement disagreeing with the MLB’s finding “undermines the Medical Licensing Board’s guidance” and “has created confusion [which] threaten[s] the privacy” of other patients.

 The MLB unanimously cleared Dr. Bernard of charges filed by Rokita’s office that she was unfit to practice medicine and failed to report a case of suspected child abuse. 

Indiana law expressly requires information about physician misconduct allegations to “be held in strict confidence” unless the attorney general notifies the MLB that they intend to file charges. Rokita appeared on Fox News’ “Jesse Watters Primetime” 12 days after the Star article was published, characterizing Dr. Bernard as “an abortion activist acting as a doctor” and vowing to gather evidence for a potential licensure action. His office filed charges more than four months later.

The disciplinary complaint maintains Rokita’s comments violated two ethical rules for attorneys: a ban on prejudicial statements about the “credibility, character (or) reputation” of a person being investigated, and a prohibition on comments whose only “substantial purpose (is) to embarrass, delay or burden a third person.”

The third count of the complaint accuses Rokita of repeated violations of the ban on discussing pending MLB investigations, citing the Fox News appearance; a subsequent news release and Facebook Live news conference; interviews with Indianapolis TV station FOX59 and a newspaper reporter in September 2022; and the public release of a July letter to Gov. Eric Holcomb demanding that he expedite the release of required state forms Dr. Bernard filed documenting the abortion and the child abuse.

Two hours after the disciplinary complaint was announced, Rokita released excerpts from his planned formal response to the charges. Rokita’s response maintains he was commenting on a HIPAA investigation of Dr. Bernard, which he says was non-confidential. The attorney general said his statements about what was already an internationally-discussed case “reflect his commitment to fulfill official duties regardless of political sensitivity and to keep the public informed. The comments were consistent with his duties as an elected official.”

The attorney general’s response also argued “no confidentiality should be required” because Bernard herself had violated her patient’s confidentiality by discussing the case.

Rokita’s lawsuit against IU Health asks a judge to order the hospital system to implement and follow a sanctions policy against physicians who violate HIPAA. The lawsuit accuses IU Health of “ratifying Dr. Bernard’s conduct” by announcing an internal investigation had concluded Dr. Bernard had not violated HIPAA, and by issuing a statement after the MLB ruling declaring its disagreement with the board’s findings. The suit questions whether the internal inquiry investigated HIPAA issues at all and argues that IUH’s continuing defense of Dr. Bernard’s actions shows “a systemic flaw in its implementation and administration of HIPAA.”

The lawsuit charges, “Rather than protecting the patient, the hospital chose to protect the doctor and itself.”

The lawsuit’s eight counts include an allegation that IU Health violated Indiana’s Deceptive Consumer Sales Act by absolving Dr. Bernard of wrongdoing while assuring patients that the health system protects confidential medical data.

Both Dr. Bernard and Rokita elected not to appeal the MLB findings in court by an Aug. 30 deadline.

Attorney discipline can range from a non-public reprimand to disbarment. Attorneys accused of misconduct can either reach an agreement with the Disciplinary Commission on punishment or challenge the accusation of misconduct before a hearing officer. The final decision on a finding of misconduct and any recommended punishment rests with the Indiana Supreme Court.