TORT ABORT

Dr. Brian Finkel is an outgoing bear of a man given to bursts of enthusiasm and outrage. Even though he has a long history of working with the press, on first meeting, he seems overeager to impress, to demonstrate that he is one of the good guys. After a while, though, it becomes clear that most everything Finkel does is a bit over the top, whether he is trying to impress anyone or not. Apparently, he can't help being slightly overbearing, in his own barrel-chested, bluff way.

It is easy to see why even people who like and agree with him wonder whether he is not, at times, his own worst enemy.

He teases female office staffers with irreverent double-entendres; they respond saucily, but then, when his back is turned, sometimes heave muffled sighs. He is 44 years old, a military veteran who occasionally leaves singing telephone messages. He has been known to sign written missives "The Big Fink." A shield-shaped placard in his office bears an acronym--NFWF--that, the doctor says with twinkling eyes, is shorthand for his personal credo: "Nobody Fucks With Finkel."

Fast-talking, hard-charging, gregarious Brian Finkel clearly enjoys his job, his life, his clients and the people who work around him in a big, if egocentric, way. He is one of those lucky people who considers his work a calling, and his calling to be the work of the angels.

Finkel also wears a 9-millimeter pistol on his hip while in the office, and carries a different side arm--a Colt .45 with green, luminescent sights--when then sun goes down. He arms himself because he knows that there are some people in 20th-century America who are affronted by cheerful, prosperous and opinionated abortion doctors.

Well, let's amend that judgment a bit. Finkel is not nearly as prosperous as he could be. And for all his outward lan, he is a lot less happy than he was just a few short months ago.

You see, Dr. Brian Finkel has spent tens of thousands of dollars and a lot of time with lawyers to free his business from what he sees as an amazing level of harassment--only to run head-on into a loophole in the American justice system. It is a loophole that threatens the right to choose across the country.

If you've paid attention to the national news lately, you know that the federal government is shocked--shocked--to discover that the antiabortion movement might actually have lawbreakers in its midst.

After years of governmental inaction, and the shooting of a few doctors, the FBI this year announced it would investigate the possibility that the abortion activists who have been killing people and blowing up buildings to save fetuses might be consulting with each other. In short order, the national press began churning out breathless investigations of circumstantial connections among a variety of unhinged antiabortion wackos.

Death and conspiracy make for good reading, but there is another trend in the abortion wars that has received less prominent press treatment, even though it may ultimately affect the abortion industry--and the right to reproductive choice--as profoundly as the shooting of doctors. The trend isn't as journalistically sexy as murder and arson.

It involves the filing of malpractice lawsuits against abortion providers.
On the national level, the trend is being aided by a Texas-based nonprofit group named Life Dynamics Inc., which provides low-cost assistance to the alleged victims of abortion malpractice and to the attorneys who file lawsuits on their behalf.

Life Dynamics walks and talks a well-reasoned line. The group's president, Mark Crutcher, acknowledges his antiabortion views; he told the Wall Street Journal he would be quite happy if all abortion clinics were to go out of business.

At the same time, Crutcher insists that the lawsuits in which his group assists are not politically motivated attempts to bankrupt abortion doctors, but legitimate efforts to help victims of real medical malpractice.

"There is no way I can go out there and talk these personal-injury attorneys into filing frivolous lawsuits against these doctors," Crutcher says. Besides, he says, there are too many legitimate malpractice lawsuits to waste time and money on marginal cases.

Of course, the people in the pro-choice camp see the situation differently. Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, says that violence still tops the list of complaints he receives from abortion providers, but malpractice lawsuits now are running a close second.

"If a doctor has harmed a patient, he should be disciplined. [But] what we're seeing is frivolous suits," Fitzsimmons says.

Malpractice lawsuits are expensive. Even if the lawsuits are shown to be unfounded, after a certain number are filed against a doctor, legal fees mount and the physician is either charged exorbitant insurance premiums or dropped by his insurer altogether. Or, pro-choice sources say, he goes into another line of work.

"I've got to hand it to Life Dynamics," Fitzsimmons says with a sigh. "They're onto something very disturbing, and I don't know what we do about it."

In Arizona, the prominent name in abortion lawyering is John J. Jakubczyk.
Jakubczyk has long-standing connections to antiabortion politics in Phoenix.

At various times, he has been an officer of, a director for and general counsel to Arizona Right to Life, the state's highest-profile antiabortion group. He provided legal advice for the book Closed: 99 Ways to Stop Abortion, written by Joseph Scheidler, whom U.S. News and World Report recently labeled the intellectual godfather of the antiabortion movement. (Jakubczyk also was a featured speaker at a recent Life Dynamics malpractice seminar, but says he has no formal connection to the group.)

In a telephone interview last week, Jakubczyk insisted that he has done his best to separate his political antiabortion work from his activities as an attorney who from time to time just happens to represent women suing abortion doctors.

Among other things, Jakubczyk claims he screens his cases carefully to ensure that the malpractice lawsuits he files against abortion doctors are bona fide.

He ticks off the checkpoints: A client must have been injured by an abortion doctor. That injury must have been caused by the doctor's failure to exercise a proper standard of medical care. As a practical matter, there must be damages sufficient to make the case worth filing. And the potential client must be able to withstand the rigors of lengthy litigation.

Jakubczyk notes that he declines to file suit against abortion doctors much more often than he accepts such cases.

"I file a lawsuit on behalf of the woman only if there's a legal case," he summarizes.

Jakubczyk is technically correct in that summary. As far as the Arizona court system and the State Bar are concerned, he has never filed suit improperly. According to the authorities, he has not stepped over ethical bounds, or engaged in what can legally be termed harassment, in any of the abortion malpractice cases he has filed.

That is not to say that Jakubczyk has won vast sums of money for the alleged victims in these cases. His record in that regard might charitably be termed dismal.

And although Jakubczyk has not won much money for his clients, he has given abortion providers a lot of unwarranted grief, both in and out of the legal system.

In fact, after a couple of weeks of researching the public record, I have developed an opinion about Mr. Jakubczyk's overall conduct in regard to abortion.

In my opinion, that conduct can reasonably be described as despicable.
His methods are ingenious, even intriguing. He talks about morals and concern for humanity, even as he stretches the system to inflict maximum pain on doctors providing a constitutionally protected health service.

Despicable as I might think his conduct, though, right now, John J. Jakubczyk is perfectly free to practice law, and to file lawsuits against abortion doctors, as he sees fit. Just ask the State Bar of Arizona. Or Dr. Brian Finkel.

If you're going to mention Jakubczyk's name in Finkel's presence, be prepared to spend a long, long time listening to an impassioned screed filled with the sort of imaginative epithets that can only be driven by outrage. When Finkel talks about Jakubczyk and other antiabortion activists, the words "sociopathic" and "malevolent" pop up repeatedly.

The feeling seems to be mutual. Jakubczyk made it fairly clear last week that Finkel is not one of his favorite people. The term "goon" was employed a couple of times, although I don't think it was ever directly assigned to Finkel.

This mutual antipathy has grown from a tangled history that involves a series of antiabortion protests at Finkel's clinic, the Metro Phoenix Women's Center. That history is complicated by a lawsuit Finkel filed to control the protests. And there are also two abortion malpractice lawsuits wound into this tale, both of them cases in which Jakubczyk represented women suing Finkel.

The conflict started in earnest early in 1989, when antiabortion activists began a series of demonstrations at Finkel's clinic; they occurred, on and off, for more than a year. During the demonstrations, activists harassed patients and staff in a variety of ways, at one point even assaulting Finkel in his office and injuring his fingers.

A January 1989 protest involving some 550 people resulted in the arrest of 184 demonstrators, many of whom Jakubczyk subsequently defended in court. The people who attacked Finkel also were prosecuted. But police could not prevent the protests. They could only react to the most outrageously illegal conduct.

Meanwhile, in July 1989, a "Jane Doe" malpractice lawsuit was filed against Finkel, claiming he had performed an incomplete abortion that caused the woman "severe physical and emotional trauma." Jakubczyk was the attorney.

The suit was so important, so well-founded in all respects, that it was dismissed less than six months later, according to court records. No money was paid. The suit was simply permanently dismissed.

The dismissal did, however, involve a deal. Finkel agreed to waive payment of $500 in legal fees a judge had assessed against Jakubczyk. The judge had assessed the fees to compensate Finkel's attorney. Finkel's attorney needed to be compensated for preparing a legal request to keep Jakubczyk from passing out information from pretrial proceedings "to numerous public sources in an attempt to harass, embarrass and annoy Dr. Finkel."

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."

Finkel fired off a complaint to the State Bar, which regulates attorney conduct, asking for an investigation of Jakubczyk.

The Bar told him it would wait until Jakubczyk's appeal of the sanctions had been decided before taking any action. The Bar would wait a long time. It is still waiting.

More than two years later, the Arizona Court of Appeals reversed the Rule 11 sanctions assessed against John J. Jakubczyk. It is a ruling that should gladden the hearts of third-rate personal-injury attorneys across Arizona.

The appeals court said the mere "possibility" that Finkel had caused injury to the patient, as expressed in an affidavit written by Dr. McMillan, was enough proof of causation for Jakubczyk to have reasonably filed a malpractice lawsuit.

That ruling did not, of course, revive the malpractice lawsuit Jakubczyk had filed. It stayed dead as a doornail. And the appeals court didn't exactly sing praises about Jakubczyk's conduct, either.

The court noted that, from its reading of the Superior Court record, it seemed possible that Jakubczyk had violated standards of attorney conduct in all sorts of ways. For example, over the seven months the suit was pending, he never bothered to obtain records of the patient's "pertinent medical history"; in fact, he did not even have her undergo a physical exam, the court said.

But because the trial judge had not ruled specifically on those allegations, the appellate court said it had "no opinion" on whether other sanctions against Jakubczyk might have been appropriate.

The bottom line: The sanctions were dropped. Jakubczyk was officially, ethically pure.

"That was a case where the defense attorney just did a good job of defeating me," Jakubczyk says now. "They did a good job. They beat me. They won the case."

And what about the sanctions?
"Frankly, I'm not going to comment on how that all happened. It's behind me," he says. "Let's just say I was the lawyer on the case. I lost the case."

Although clearly upset and puzzled by the appeals-court ruling, Langerman, Finkel's attorney, chooses her words carefully before commenting. "There are many circumstances," Langerman says slowly, "where lawsuits are brought by litigants who are walking extremely close or on top of the line over which conduct would be sanctionable.

"All systems have loopholes," she says.
The State Bar isn't exactly working day and night to sew up this particular loophole. In fact, Finkel says the Bar has notified him that it will not investigate Jakubczyk's behavior in the case.

Harriet Turney, chief Bar counsel, would not confirm that, saying she is prohibited from commenting on specific complaints unless the Bar decides disciplinary action is warranted.

Turney did, however, agree to explain the Bar's discipline process.
Essentially, she says, unless someone asks a judge to assess legal sanctions against an attorney for violating ethics rules; unless the judge actually assesses those sanctions; and until those sanctions are upheld on appeal--unless and until all that happens, the Bar has no grounds to undertake disciplinary action against an attorney who engaged in conduct comparable to Jakubczyk's.

Later, when pressed for a bit more explanation, Turney puts it another way.

"The ethical rules for lawyers are minimum standards," she says. "So there are a lot of things that might not fit with your moral code or my moral code, that might not be violations of the ethics code of conduct."

Finkel does not see the situation in those terms. After the appeals court reversed the sanctions against Jakubczyk, the doctor shot off a letter of complaint to Turney. He apparently was not aware of her vision of the Bar's responsibilities.

In typical Finkel style, the letter is full of florid language and complaints about Jakubczyk. One sentence more or less sums up its main point: "What is the State Bar going to do to insure that its rules, regulations and disciplinary processes are adequate to cover developing art forms of misconduct?"

Turney's letter of reply was careful and lawyerly.
"The simple answer to your question," she wrote, "is that, according to the [appeals] court's ruling, there was no violation of its rules and, therefore, no basis to invoke disciplinary processes."

Finkel has an opinion about Turney's response. It's not careful at all.
"I pray to the Bar for relief," he says, "and they give me the finger."

During a couple of weeks of research, I was able to find eight abortion malpractice lawsuits in which John Jakubczyk has represented a plaintiff. Two of the cases are in fairly early stages, so it's hard to say how they will turn out.

In one of the cases that is complete, Jakubczyk apparently won a small amount of money for the client (one account puts it at $6,000; Jakubczyk declines to comment).

The other five netted Jakubczyk's clients nothing, as far as I can tell. Here's what his rigorous malpractice screening standards produced:

In a case that actually made it to court in 1987, a woman sought $2.1 million in damages. A jury rejected the claim.

Both malpractice suits Jakubczyk filed against Finkel were dismissed long before getting anywhere near a trial. No damages were awarded.

A 1989 suit against a doctor at the A-Z Women's Center was dismissed a little more than a year after it was filed. Again, no money was paid to Jakubczyk's client.

A 1991 action against a different doctor at A-Z Women's Center was dismissed about a year after it was filed. No money was paid. The judge's comment upon dismissal: "Plaintiffs have failed to show this court either good cause or due diligence in prosecuting these claims." (The doctor in that case was issued an advisory letter of concern from the state Board of Medical Examiners.)

There are two other cases in which Jakubczyk participated that involve reproductive care. Both suits were against doctors affiliated with a biomedical firm, and both involved amniocentesis, a procedure in which a needle is inserted into the womb of a pregnant woman to obtain fluid for analysis.

Jakubczyk said the cases belong in a different category than abortion malpractice. And the suits don't involve abortion; they involve the death of fetuses as a result of a procedure that is not abortion.

Both cases were dismissed before trial.

Several years before Finkel's clinic was targeted by the antiabortion crowd, another abortion facility, the Family Planning Institute, suffered through demonstrations by pro-life groups with which Jakubczyk was affiliated. FPI also had to pay to get an injunction to limit those illegal activities. That injunction names Jakubczyk.

I'll let Constance Bennett, FPI's executive director from 1984 to 1992, tell you about the demonstrations.

It was 1984 when Bennett came on the job, and, she says, "because I didn't know Mr. Jakubczyk, I tried to be nice."

Starting in April of that year, though, pickets started showing up every three or four weeks. They surrounded cars, she says. They were dressed in costumes. They had a band playing. They screamed at patients.

Bennett says she got letters and phone calls from people threatening to blow up the clinic. There were at least five such threats.

Her dog was killed. Windows at her home were broken. The clinic's roof was chopped open--apparently by hatchet--"multiple times," she says. The clinic's doors were Super-glued shut "at least ten times," Bennett says.

"I tell you what: They did every possible thing I could think of. They were so creative in trying to get us closed down," Bennett says.

The demonstrations resulted in arrests. Jakubczyk represented many of the demonstrators in court. Bennett says, "I was in court one year at least 30 percent of my time, because I kept getting subpoenaed by John Jakubczyk."

It cost FPI thousands of dollars to get its injunction. Bennett remembers the clinic spending more than $30,000 one year in legal fees.

"It was like being under siege in America," Bennett says. "I never had problems with picketers and people on the sidewalks, but this was much more than that. It was an incredible experience."

Since FPI won its injunction against Jakubczyk, he has filed malpractice lawsuits against two doctors working at the clinic. One of the cases involves his major abortion malpractice victory, the $6,000 settlement.

The other suit is pending.

The antiabortion movement has evolved since the colorful days of rescues and mass arrests. Because of FACE--the Freedom of Access to Clinic Entrances law, which makes it a federal crime to restrict access to abortions, and carries a prison sentence for first offenses--pro-life groups are looking for new ways to fight the "holocaust" of abortion.

Abortion malpractice litigation is one of those methods.
I'm not saying that John Jakubczyk is using marginal malpractice lawsuits as a political tool against abortion providers. I can't get inside Jakubczyk's head to prove whether that's true, and even if I could, I'm not sure that inside John Jakubczyk's mind is anywhere I'd ever want to be.

No, I've laid out some facts about Mr. Jakubczyk's activities not to prove that he's doing anything illegitimate. I laid out those facts to show that even if he were acting entirely from political motives, so long as he did not announce that from the rooftops, his legal work would be perfectly acceptable.

As long as his abortion malpractice cases met the minimum standard for filing, he could file until the cows came home, even if none of the cases had an ice cube's chance in hell of succeeding.

Remember Mark Crutcher? He's the president of Life Dynamics, the Texas group that's helping attorneys across the country who want to file abortion malpractice cases. He vehemently opposes the right to choose.

His group is providing abortion malpractice attorneys with television commercials to attract clients. The attorneys only have to pay for the voice-over part of the ad, and maybe some graphics changes.

Life Dynamics runs a three-day seminar that teaches alleged malpractice victims how to testify effectively.

Crutcher claims his group has about 600 attorneys now associated with it. There are 500 or so physicians who have agreed to provide expert review of abortion malpractice cases for Life Dynamics, he says. Obviously, when doctors do wrong, there should be a remedy in court for the victims.

But just as obviously, the legal system needs to provide a better remedy for other victims--the victims of unwarranted litigation filed by overeager attorneys.

The Constitution protects the right to choose. The legal system should protect it, too.

Abortion doctors and clinics shouldn't have to suffer the legal equivalents of Super-glued locks and hatcheted roofs just because they provide health care that offends a virulent minority of society.

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