Indiana physicians - your ability to practice medicine is threatened
19 June 2023
In Indiana, there is a new standard for what constitutes a violation of patient privacy under HIPAA, the Health Insurance Portability and Accountability Act of 1996. Previously, the HIPAA privacy law prevented only disclosure of “protected health information” that either identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual.
However, as recently discussed, the Indiana Medical Licensing Board has created a new standard for physicians in Indiana which may be followed in other red states. They reprimanded Dr. Caitlin Bernard, whose offense was answering an IndyStar reporter’s questions about a 10 year old Ohio girl on whom Dr. Bernard performed an abortion in Indiana. Dr. Bernard did not reveal the girl’s name but only her age, that she was pregnant with a gestational age slightly greater than 6 weeks and that she had an abortion, but this was still considered a privacy violation that deserved a reprimand and a $3,000 fine. This determination was apparently based on the testimony of Andrew Mahler, a former official with the federal Office for Civil Rights and an expert witness for Indiana, who said that Dr. Bernard violated federal privacy laws because it “certainly is possible” the girl could have been identified based on the facts Dr. Bernard gave the IndyStar reporter.
This new standard effectively prevents Indiana physicians from discussing any case, because the “certainly is possible” standard can be applied to almost any patient discussion. Although the Bernard case was about disclosure to a newspaper reporter, the standard could apply to a case report in a medical journal (which provides much more diagnostic related information), or any general discussion about a patient (“another teenager in this office also got measles”, “I cared for an 85 year old man who subsequently died of COVID-19”), whether to a patient, a media outlet, blog or otherwise.
In the Bernard case, the subject was abortion rights and the complaining party was a public official who appears to be hostile to abortion rights. But other “hot topics” are also possible targets based on this Mahler standard, including transgender care or other treatment of LGBTQ patients, contraception, in vitro fertilization (which may involve multifetal pregnancy reduction), pain relief, vaccines and even COVID-19. In addition, anyone who has animus to a physician (e.g. a member of a competing physician group, a disgruntled patient or other enemy) could use this nonspecific standard to file a complaint against any physician.
Will you or your doctor be affected next?
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