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Anti-abortion tactic of malpractice lawsuit proving effective even in defeat


PHOENIX, Ariz. -- Dr. Brian Finkel, whose practice consists mostly of performing abortions, sounds matter of fact when he talks about the bullet-proof window in his office, the bullet-proof vest and helmet he wears walking to his car, the guns he carries, the years of demonstrations outside his office and the threats he has received.

But he sounds thoroughly outraged -- and, in his own bluff way, hurt -- when he gets on to the subject of John Joseph Jakubczyk, general counsel to Arizona Right to Life, and the newest anti-abortion strategy: malpractice suits against the doctors who perform abortions.

"John Jakubczyk is a lawyer, an officer of the court, who has abused his professional power to harass me and intimidate my patients," Finkel said. "The suits he filed against me have dirtied my name. They have made me uninsurable for most insurance carriers. They made me pay legal fees to defend myself. I am committed to providing women with a service they need, but I have begun to wonder if it's worth it. You get hit about the head with a two-by-four long enough and you finally say, ouch, that hurts."

While abortion-malpractice lawsuits are a new phenomenon in much of the country, they are almost routine for Mr. Jakubczyk, who has filed nine of them in the last decade.

Besides two against Dr. Finkel, Mr. Jakubczyk has also filed malpractice claims against the local Planned Parenthood affiliate, the A-Z Women's Center, a doctor at Abortion Services of Phoenix, a doctor at the Family Planning Institute.

vTC So far, Mr. Jakubczyk has had little success. He lost the only case that went to trial. Most have been dismissed or withdrawn. And in one case against Dr. Finkel, the judge thought the charges so flimsy that he fined Mr. Jakubczyk for filing a frivolous suit, but the fine was later overturned by an appeals court.

"The problem is, even if they lose, they win," said Dr. Finkel, who has faced six abortion malpractice suits -- some filed by other lawyers than Mr. Jakubczyk -- which were all dismissed. "Whatever happens in court, they've had the press conference, and I've been damaged. I'm paying $25,000 a year for insurance now, and I'm not allowed to practice out of state, all because of this developing art form of legal misconduct."

In response to Dr. Finkel's complaint, the Arizona bar is investigating whether Mr. Jakubczyk's lawsuits violate ethical standards.

Like any other surgery, abortion carries risks. And there is nothing new about a malpractice suit when a doctor's bad care has caused severe injury or death.

What is new is the number of abortion malpractice suits now being filed -- and who is filing them. Increasingly, lawyers associated with anti-abortion groups, rather than malpractice specialists, are seeking out claims against doctors who do abortions.

According to J. Thomas Smith, a partner in a new law firm devoted to abortion malpractice, only 86 abortion-malpractice verdicts have been issued in the last 10 years.

While no one knows how many current cases will end in verdicts, Life Dynamics Inc., an anti-abortion group in Denton, Texas, that is encouraging such suits, says it is involved in 80 cases.

Many new cases go beyond traditional malpractice claims. Life Dynamics, which attracted 125 people to Dallas for a two-day seminar last year on abortion malpractice, has provided much of the impetus and legal research for expanding the kinds of cases brought against doctors who do abortions.

For example, it offers research and expert witnesses on post-abortion trauma who say women often suffer the same kind of long-term psychological problems after abortions as soldiers do after wars, a concept that was examined and rejected by both former Surgeon General C. Everett Koop and the American Psychological Association.

Life Dynamics advises lawyers to consider charging doctors with battery if the woman's formal consent can be challenged.

In a mass mailing to doctors, Life Dynamics advised them to tell women of studies tying abortions to a higher risk of breast cancer and asked them to refer any patients who have had an abortion and are now diagnosed with breast cancer to Life Dynamics for "inclusion in a proposed class-action lawsuit."

Mark Crutcher, the president of Life Dynamics, said his group had more than 600 lawyers in its "Abmal" network, 40 percent of whom, he said, support abortion rights.

The network offers lawyers ads soliciting clients, expert witnesses, courses to teach women how to testify effectively, dossiers on abortion doctors and even a loan of the medical instruments used in abortion for lawyers to use in showing a jury what was done.

"There are more women than we ever dreamed of getting killed, raped, assaulted and severely injured by abortionists," Mr. Crutcher said. "We've got over 2,500 examples now."

Life Dynamics is not the only group encouraging these suits. In Pensacola, Fla., Mike Conroy says his organization, Legal Action for Women, gets about 10 calls a day on its toll-free line, 1-800-U-CAN-SUE, from women who say they have been injured by an abortion.

Conroy's group, like Life Dynamics, refers women to lawyers who will handle such cases, and both groups provide materials to hand out to women leaving abortion clinics.

Last year, several lawyers from different states established a firm, Swendsen, Amshoff, Donovan & Smith, to handle abortion malpractice work. Ted Amshoff of Louisville, Ky., said the firm had 20 open cases, including four in which women died as a result of abortions.

Many abortion doctors, clinics and women's advocacy groups see the new malpractice suits as a form of harassment motivated by anti-abortion ideology.

"These are bogus lawsuits," said Pamela Maraldo, president of Planned Parenthood Federation of America. "Where there is malpractice, where a bad doctor is injuring women -- of course we want that stopped. But in the current war-zone climate of bombings and shootings at abortion clinics, with the active campaigns to threaten doctors who perform abortions, I can't believe these lawsuits are aimed at protecting women. I believe they are part of an overall strategy to take away women's right to choose."

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