TORT ABORT

About a month later, in February 1990, after putting up with more than a year of what courts later found to be illegal harassment, Finkel filed suit against the group Project Rescue. The group's members had been going about town trying to save women from exercising their constitutional right to reproductive choice.

The suit named a number of individuals, including Jakubczyk, as defendants. It sought a court order that would put a damper on some of the most objectionable behavior in and around Finkel's clinic.

A little more than a year later, Finkel won the order--in legal terms, a permanent injunction. It did not specifically name Jakubczyk, but it did apply to "agents and attorneys" of those activists who were named.

The injunction is damning. It finds that three particular defendants "and other persons acting in concert with them" had engaged in a pattern of unlawful harassment aimed at forcing Finkel "to discontinue providing lawful medical services, including abortion services." Essentially, the injunction says that Finkel's constitutional rights, as well as those of his patients, had been repeatedly violated in an attempt to drive him out of business.

The violations were nasty and varied: Protesters trespassed; they threatened, insulted and surrounded medical staff and patients; they assaulted Finkel; they formed themselves into a human chain to block doors. The injunction prohibited further harassment.

The demonstrations had already exacted a cost, though. Finkel claims this organized thuggery so upset landlords that he was forced to move his office twice. It's impossible to tell how many patients he lost. And the legal fee to obtain the injunction, Finkel says, was staggering: $60,000.

"Sixty grand. That's a lot of money. That's my drop-dead money," Finkel says. "That's the money I should have had for a rainy day."

Even as that case was moving through court, Finkel was sued again for malpractice. Again, Jakubczyk was the attorney. Again, the suit went nowhere. How it got there, though, is an interesting case study in modern American jurisprudence: the perfectly legal, absolutely despicable abortion malpractice lawsuit.

Anyone expecting to win a medical malpractice lawsuit should be ready to show that a doctor provided a substandard level of medical care, and that the deficient care caused injury to the victim.

On November 13, 1990, a young woman sued Brian Finkel, claiming that she had contracted pelvic inflammatory disease after the doctor performed one abortion and then, when it appeared that some fetal material had been missed, conducted a second abortion procedure.

As is usual in medical malpractice cases, Jakubczyk sought an expert opinion before he filed the lawsuit. That expert opined that Finkel's care had fallen below medical standards (an opinion never proved in court and contradicted by other evidence in the case). The expert also said it was possible--not probable, not certain, but possible--that Finkel's care had injured the woman in question.

The expert was Beverly McMillan, a physician who lives in Jackson, Mississippi, and holds distinctly antiabortion views. She also happens to be the wife of Roy McMillan, an antiabortion activist who was recently profiled in the New York Times Sunday magazine. In that article, Mr. McMillan is quoted as saying it is "not a sin to go out and shoot an abortionist."

Happily, the 51-year-old McMillan was quick to add that he has no plans to shoot anyone himself. "I've simply made a theological, philosophical statement," he says. "I'm not prepared to do it. I don't relish being put in an electric chair."

On June 7, 1991, about seven months after the suit had been filed, Superior Court Judge Alan Kamin dismissed it, ruling that it was fundamentally flawed. The suit, he said, lacked a basic element of any legitimate malpractice allegation: evidence that a doctor's care had caused injury to the patient.

A bit of narrative, taken from court documents, tells the tale:
Kamin: Correct me if I am wrong. And if you want to go over this [Dr. McMillan's] affidavit in detail, we can do that. From what I recall of reading it, there was not anything on causation. Am I correct in so characterizing it?

Jakubczyk: Yes, your honor.
In other words, after at least seven months of investigation, Jakubczyk still had not developed any evidence that Finkel had caused the alleged medical problem.

After that admission, Judge Kamin threw out the lawsuit--and shortly thereafter, took even harsher action. On the request of Finkel's attorney, the judge assessed thousands of dollars of sanctions against Jakubczyk (according to court documents, enough to pay Finkel "back for every single penny" the suit had cost him).

The judge said Jakubczyk could not have "objectively thought the suit was well-grounded in fact and warranted by existing laws. . . ."

Kamin did not rule that Jakubczyk had filed the suit as part of a campaign of harassment, as Finkel's lawyer, Amy Langerman, had requested. But the sanctions--assessed under what is known as Rule 11 of the Code of Civil Procedures--nonetheless posed a significant threat to Jakubczyk. They could have been grounds for disciplinary action against him by the State Bar.

Jakubczyk appealed the sanctions. Langerman was direct in responding to the appeal: "Given the history between Mr. Jakubczyk and Dr. Finkel, as well as the total lack of causation evidence in this [malpractice] action, there can only be one conclusion: Mr. Jakubczyk instituted this action for the improper purpose of harassing and intimidating Dr. Finkel."

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