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?