JC

ジャパニーズクラウド（Japanese Cloud）はアメリカの人間組織、または、政治体制や裁判方式によって生じた日本国と日本人に対する不正不法不平等処置に対して抗議をするために立ち上がった良識ある日本人同志の社会正義奉仕活動サイトです。

創始者： 筆名　大石理玖

―PRO SE LITIGANTS―

An unfortunate thing can happen to you and you may need to sue someone to receive justice; then, you may be looking for a lawyer to represent your case. Lawyer’s fee is somewhere between $250 and $400 per hour in the San Francisco Bay area where I live. Do you have that much money? If you are one of the average income people in the United States, you cannot even imagine hiring a lawyer, particularly, when you do not know how many months and years it takes to complete the case. You may choose to represent yourself in court; then, the court identifies you as “pro se litigant,” treats you unfairly as if you are the second-class citizen, and may even prevent you from receiving justice. The way of how the court treats pro se litigants is a form of discrimination based on the person’s financial status. You probably do not know about this unless you actually experience being a pro se litigant in court.

In California, the Rule 10.960 of the California Rules of Court states, “Providing access to justice for self-represented litigants is a priority for California courts.” Furthermore, according to the U.S. Department of Justice, the California courts receive specific fund from the federal government and have the duty to provide assistance to LEP persons (persons with limited English proficiency). I was the LEP pro se litigant in the San Mateo County Superior Court; however, I did not receive any assistance from the court. Instead, I was mistreated by the court which openly expressed favoritism toward the lawyer of the adverse party over me.

Many organizations claim that they provide free or low cost legal assistance to the pro se litigants in California. However, they usually offer assistance only on housing or employment matters, and/or only to Spanish speaking people. My matter was neither housing nor employment, and I do not speak Spanish.

Although Californians pay their taxes to support California courts, the courts do not support pro se litigant Californians. Needless to say, the court’s expenses including the judges’ salaries come from the Californians. California courts are well aware of the facts that lawyer’s fees are too expensive for most Americans to afford, and those with average English skills cannot understand the court law and rule. ("Average" Americans read English at a 7th or 8th grade level, and they represent 65-85% of the people in the United States.) However, the courts have been simply ignoring the needs of assistance for the California taxpayer forced-to-become pro se litigants.

During the last four years, I have fought against both defendant doctor (Jay K. Benard, D.P.M.) and his defense lawyer (Mr. Mark R. Gibson) who have lied and concealed evidence in medical malpractice lawsuit. Not only the California courts failed to assist me, LEP pro se litigant, but also the court law itself prevented me from access to justice.

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―UNETHICAL DEFENSE LAWYER―

Dr. Benard, a San Francisco podiatrist, performed five surgeries on my left foot; I had experienced unusual pain and limped for long time after the surgeries. Not only Dr. Benard ignored my repeated complaints about the pain, but also his behavior was so strange that it told me that he was hiding something from me. I filed a lawsuit against him.

In the proceedings, his defense lawyer, Mr. Gibson subpoenaed to the doctors whom I had received treatments from over ten years. He collected my medical records including the graphic images and photos from my breast cancer’s surgeon, my breasts plastic surgeons, and my gynecologist. These records were subpoenaed for Mr. Gibson to produce and distribute the copies of the medical records to six men: the workers of PICA (a medical malpractice insurance company), the defendant’s medical expert, and the lawyers of his law firm (Bradley Curley Asiano Barrabee Abel & Kowalski). Why did the podiatrist’s defense lawyers and his associates need to see the graphic images and photos showing the private parts of my body? Thus, intentionally, the defense lawyer began to create tremendous psychological torment on me.

Later, furthermore, Mr. Gibson wanted to know about the “scars” from my breast plastic construction surgeries and he subpoenaed to the doctor. Meanwhile, by maneuvering laws and lying before the court, the defense lawyer continued to conceal my own medical records and x-ray films. I began to see his defense strategy.

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―THE CALIFORNIA COURTS―

The California court will make you feel like a fool person when you represent yourself in court. I was particularly “a very foolish woman” to the judges because I spoke English poorly with a strong foreign accent. The court asks the public to swear to tell only the truth, but the court is careless when lawyers lie against pro se litigants. Lawyers are good friends of court. Lawyers know that they can lie in court but the public do not. That means one rule is applied differently: one interpretation for law professionals and another for the public. In the proceedings, you will find that the judge is likely to have trust in lawyers more than in you. Instead of providing you with assistance, contrary to what you read in the Rule 10.960, the judge rules your case by referring the court case: "When a litigant is appearing in propria persona [=pro se litigant], he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” [Lombardi v. Citizens Nat’l Trust & Savings Bank (1955) 137 Cal. App. 2d 206, 208-9; Burnete v. La Casa Dana Apartments (2007) 148 Cal. App. 4th 1262, 1267]

Finding the laws, or rules, of the court that pro se litigants need to know is like finding a specific fish at sea. For law-illiterate litigant, reading the laws, or rules, is like that a 7th grade student is trying to read a technical textbook for a graduate school. The law language is a foreign language to the pro se litigants. Since English is my second language, the situation I was in was terrifying.

The laws and rules of the court are written in the language that only lawyers can understand. However, the court expected me, the LEP law-illiterate person, to not only understand the language but also know every little detail as much as lawyers do. Because I did not, I got penalized for being ignorant about the laws and rules.

When I appealed the same case to the Court of Appeal, the court told me that my submission violated the court rules and dismissed my appeal. I still do not know what mistakes I made; but, it seemed to me that they were just some technical mistakes. To the Court of Appeal, my technical mistakes were more problematic than numerous misconducts of the defense lawyer.

When I filed a petition to the Supreme Court of California, the court simply denied my petition without stating any reason. This is what you are likely to experience in the California courts when you cannot afford to have a lawyer to represent your case.

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―UNJUST LAW―

The California courts use the Californians’ taxes to create the California court laws; but, the average Californians cannot even understand them. If you, the average Californian, became the pro se litigant and made a mistake in the procedure because you did not understand how to follow the laws, the courts would penalize you and/or dismiss your case. The courts would tell you that you had violated the laws.

Thus, the California justice system has been set up against the pro se litigants for them to lose their case. The court laws and system were created so that only the lawyers can understand, maneuver through, and even exploit the weakest person in the court—the pro se litigant.

When the courts expect the average Californians to understand and follow the laws, the laws should be written in plain language that they can understand. The average people with the 7th or 8th grade English skills should be able to quickly read, comprehend, follow and use the laws effectively.

When the difficulty of the laws prevented the people from having access to justice, the laws themselves deprived their inherent rights of access to fair justice.

Such laws are unjust law. The system which uses the unjust laws is unjust system. The government which uses the unjust laws and system and penalizes the people is itself unjust. The government is discriminating against the people based on their educational background.

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―GANDHI’S THEORY: LAW AND LAWYER―

Through this lawsuit experience, I have found that the way of how the California State government agencies, together with law professionals, work against the weak pro se litigants by using the unjust laws and system is “organized violence.” I use the word “organized violence” because it was how Mahatma Gandhi had described about the British government which used its unjust laws that had deprived the inherent rights of the poor in India. According to Mahatma Gandhi, “An unjust law is itself a species of violence” and “[it is] the organized violence of the government” when the taxpayers do not get what they have reserved to get from the government.

Gandhi even suggested to the people “Civil disobedience” against the unjust government; you may refuse to pay the taxes to the government. Gandhi also said, “Lying is the mother of violence.”

Mahatma Gandhi was once a lawyer; but, he had found that a lawyer was a liar’s profession and he, who abhorred telling lies, decided to become a public servant. Gandhi said, “I was disgusted with the legal profession. The very intellect became an abomination to me inasmuch as it could be prostituted for screening [=concealing] crime.” (Gandhi’s autobiography: The story of my experiments with truth.)

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―MY LETTER TO PRESIDENT OBAMA―

When America chose Mr. Obama as their President, I was happy and told my daughter in Japanese, “America is at a turning point. America will be a better nation.” I thought that the American society that has been only for the rich and white is changing.

President Obama’s web site tells us that he reads the letters that he receives every day. I also found the web site that indicated he had concerned about pro se litigant’s access to justice. Therefore, I wrote to President Obama a letter describing my shocking experience of observing that both lawyer’s unethical conducts and court’s lack of impartiality in the proceedings seem to be a normal practice in court. In order to terminate the lawsuit quickly, Mr. Gibson, the defense lawyer, had filed the defendant’s motion of summary judgment. For this, he paid a large amount of money to his medical expert so that the medical expert could produce the document that was filled with many false statements about the surgeries that I had received.

I wrote in the letter: “What shocked me most was that the defendant’s medical expert lied in the document of the motion for the defendant’s Summary Judgment and the defense counsel lied to support the defendant’s medical malpractice throughout the litigation. The medical expert received $700/hour to do his job. It is unthinkable that something so wrong—hiring an expert who gets paid to do so—is one of the requirements of the medical malpractice legal proceedings. Isn’t ‘Impartiality’ the first principle of justice holding that decisions should be based on objectivity?”

Discovering that money can conceal truth effectively had shocked me. Encountering with the people who can lie without any hesitation for money had shocked me. The experience shocked me so deeply that I felt like my whole world turned upside down. I had a chilling sensation on my back and realized that I was fighting with something I had not known yet in my life. I felt as if I were alone standing inside of a dark window-less and endless corridor. I sensed, then, I was confronting something big and scary like Mafia: organized crime.

I thought there was something really wrong happening inside of the court in America where the president places the importance of fairness and justice. I was so simple and so pure-minded that, I thought, I must tell this to President Obama because he should know about this.

I do not think that he has read my letter. I also sent a similar letter to a dozen of organizations or individuals. Many of them suggested me to consult with the State Bar of California.

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―THE STATE BAR OF CALIFORNIA―

Professional Conduct (The State Bar of California, 2011) Rule 5-200 Trial Conduct states: “In presenting a matter to a tribunal, a member:(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law”; (omitted) furthermore, Rule 5-220 Suppression of Evidence states: “ A member shall not suppress any evidence that the member or the member's client has a legal obligation to reveal or to produce.”

Since I could apply these rules to the defense lawyer’s conducts, I filed a complaint about the defense lawyer to the State Bar of California. Then, Mr. Calix of the State Bar told me that defense lawyer did not have to make a full and fair disclosure in legal proceedings and did not need to provide all the truth. Mr. Calix said that even though Mr. Gibson did not make a full and fair disclosure, the State Bar would not consider that Mr. Gibson is dishonest. Then, Mr. Calix told me that a lawsuit is like “a game.” Basically, he indicated that it was fine if Mr. Gibson lied and manipulated the laws to win in the legal proceedings against a pro se litigant.

Mr. Calix denied any wrongdoing by the defense lawyer. Later, when I filed a petition—“Accusation Against Lawyer”—together with all the material evidence of the defense lawyer’s lies and concealment of evidence to the Supreme Court of California, the State Bar even filed their supporting document for Mr. Gibson in opposition to my petition. Furthermore, surprisingly, the Supreme Court of California took the State Bar’s argument and denied my petition.

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―THE CALIFORNIA DEPARTMENT OF JUSTICE―

I wrote a letter to the California Department of Justice about the mistreatment in the San Mateo County Superior Court and the defense lawyer’s lie and concealment of evidence. The California Department of Justice answered: “We are unable to assist you because the Attorney General has no jurisdiction in matters already before the court or in matters where the courts have already rendered a decision.” They suggested me to contact with the State Bar of California or the Administrative Office of the Courts.

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―ADMINISTRATIVE OFFICE OF THE COURTS―

Similarly, responding to my letter, the office stated, “… not authorized to intervene on behalf of a party in a pending case, nor may they offer legal advice to a member of the public as to how to proceed with, or in, a lawsuit or prosecution.” The letter suggested me to find free and low-cost legal help which, I had found already, did not exist for a non-Spanish speaking litigant with medical malpractice case.

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―SAN MATEO COUNTY DISTRICT ATTORNEY―

Since the defense lawyer had concealed crucial evidence and lied to the court, I thought that my case should be considered as a criminal case. So, I spoke about this to an attorney in the San Mateo County District Attorney’s Office. The attorney told me that I did not have a lawyer and not know the rules of a game, for instance, a football game; as the result, I lost the game and there was nothing I could do. He said that he could not help me.

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―DALY CITY POLICE―

Because I still believed that what the defense lawyer had done was a criminal, I reported the incident to the Daly City Police Office. Then, the officer said, “If you have no lawyer, there is no case.” A lawyer has a mighty superpower in this country, and it seems that we cannot live without them. Thus, every department of the California legal agencies indicated that I needed a lawyer. Without a lawyer, my case did not exist.

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―JUDGE FREEMAN―

During the motion for continuance of trial, I told Judge Beth Labson Freeman that I had not been able to obtain my own complete medical records including x-ray films, in particular, from the defendant; and, I requested the judge to delay the trial. I had been unable to consult with any medical expert since I had not had a full set of my own medical records that I needed for the consultation. Judge Freeman said that I had everything that I was entitled to have before trial and, knowingly, ignored a federal law of patient’s rights (the inherent rights of a patient to receive his/her own medical records).

When I requested to Judge Freeman the court assistance for pro se litigants, the judge said, “…if you think that the court should provide different kinds of funding for litigants, I recommend you write to your legislator and ask him or her to consider such legislation.” The judge told me to write a letter to the government when my trial was approaching in six days. The federal government, as I already explained, provides the fund for the California courts to assist persons with limited English proficiency (LEP); so, at least, I should have been able to receive some assistance by the fund. Yet, I had not received any assistance from the court.

Did Judge Freeman not know about the fund that is given to assist the LEP persons from the federal government?

Almost one year after the hearing, I found that the United States Senator Dianne Feinstein recommended Judge Freeman for the San Jose federal judge position to President Obama. I wrote the senator about what I had experienced with Judge Freeman and asked Senator Feinstein to tell President Obama not to nominate Judge Freeman for the San Jose federal judge. But, later, I found that President Obama nominated the judge for the position.

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―JUDGE BERGERON―

Throughout the trial proceedings, Judge Joseph E. Bergeron kept pointing out my ineffectiveness and inefficiency because I was not a lawyer nor did I have a lawyer. He said, “A lawyer would know what they can say and not say,” “You are responsible for having to know what to do; when to do it; and how to do it,” and “No. Remember I told you the problem you have without having a lawyer? This could be one of them.” After the judge insulted me in front of everybody, he granted the defendant’s motion of Non suit and placed judgment against me.

During the motion for new trial, I stated to Judge Bergeron that the court system which lacks assistance to the pro se litigants has a flaw and the court should function effectively for all the taxpayers, but not just for the rich and their lawyers.

I wrote in my motion document for new trial: “If the court does not stop an attorney using his skills to deceive a self-represented litigant, the court is promoting the act of his deceiving in the court proceedings against the self-representing litigant. If the attorney in the courtroom knew that the self-represented litigant person had a case, but not bringing up the ‘truth’ of the case during the trial is the same as a lying to prevent that person from receiving real justice. If only those with loads of money to hire a lawyer and medical experts win, and if anyone without the money to do likewise loses, the legal system is designed to support only the rich. The court system is apparently flawed.”

Judge Bergeron said, “You did not have the evidence that you needed to be successful.” I said that I had not been able to receive my own complete medical records—the side view of the x-ray film in particular—from the defendant (Dr. Benard). Without the complete set of medical records, I could not have consulted with any medical expert who could, then, have prepared to testify and support my case in the trial. Then, Mr. Gibson, defense lawyer, responded by stating, “Plaintiff did have the chart of Dr. Benard prior to trial.” I possessed only a portion of my medical records but they were not complete set; and, later, three days before the trial, I received apparently more complete medical records (but still without a complete set of x-ray films) late Friday afternoon and my trial started on the following Monday. Mr. Gibson knew that I could not meet any medical expert on the weekends before the trial. I told the judge that the lawyer had been hiding my medical records and lying to the court; then, the judge scared me by stating, “Don’t get yourself into trouble.” I, who was telling the court the truth, was the person getting into trouble, according to the judge. Did I miss any part of reading in the law?

The court ignored my statement regarding the lawyer’s dishonesty.

I do not know what American law schools teach to their students. To be a good lawyer, he/she must be a good person first. Being a good judge, he/she must be the person who holds a high standard of morality and humanity.

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―LEGAL PROFESSIONALS’ CONSPIRACY―

It seems that this whole thing is the California courts and legal professional’s conspiracy against pro se litigants. Pro se litigants are up against the courts, lawyers and any organizations that support them. Law professionals who include judges and their supporters do not want for pro se litigants to have a success in court. If the California court’s assistance to the pro se litigants increases more chance for their success, the court itself can undermine the foundation of the California court system. The pro se litigants’ success threatens to diminish the importance of the legal professionals and it may cause to reduce the law professionals’ work load. The future of the law profession becomes uncertain. The bar associations—the lawyer’s organizations—need to make sure that their member lawyer’s job exists securely so that the lawyers can continue their high life style: a private school to their kid, vacations to France, BMW, and a multi-million-dollar house with a swimming pool—these are that most of the average taxpayers cannot even think of.

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―THE MEDICAL BOARD OF CALIFORNIA―

Before I filed a lawsuit against Dr. Benard, I had filed a complaint about him to the Medical Board of California. The Medical Board of California tells us on their web site that: “The mission of the Medical Board is to protect health care consumers …”

Upon my filing the complaint about Dr. Benard to the Medical Board of California, the Medical Board had requested me to sign for the release of my medical information from Dr. Benard. I did so. I had assumed that the Medical Board had collected all the relevant medical records, including all x-ray films showing my left foot both before and after the surgeries, from Dr. Benard. However, later, I found that the Medical Board did not investigate my complaint thoroughly. They never requested my complete medical records from Dr. Benard. Without complete medical records, the Medical Board concluded that Dr. Benard did not conduct a medical malpractice. Only later, I realized that not only Dr. Benard had never provided a complete set of x-ray films to the Medical Board, but he had also eliminated the record showing that my medical insurance company had never authorized for the surgeries of my second toe and second metatarsal. However, the doctor performed the surgeries on me. If the Medical Board had collected and investigated all the records seriously, they would have noticed the issue (that the doctor had never received the surgery authorization), would have notified me with the issue, and would have possibly concluded that Dr. Benard should not have performed the unauthorized surgeries on me.

When I requested Mr. McGlone of the Medical Board to reopen my case, he rejected my request and said that the case was closed. Mr. McGlone was very annoyed by my request. When I asked if I could complain about Dr. Benard to any other organization, he said that I could file a complaint to the California Podiatric Medical Association. When I checked the web site of the California Podiatric Medical Association, I found that one of the corporate sponsors was PICA. PICA is a nation’s leading podiatric malpractice insurance company in Franklin, TN. The company uses Mr. Gibson, who is the company’s retaining defense lawyer and has defended Dr. Benard against me. It means that my complaint about Dr. Benard would not have gone to anywhere even though I had filed a new complaint about Dr. Benard to the California Podiatric Medical Association. Thus, again, Mr. McGlone provided his answer to my inquiry irresponsibly. It was clear that he was careless about my serious complaint about the doctor, and he may have acted in this way on behave of the doctor.

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―“FRIVOLOUS” MEDICAL MALPRACTICE LAWSUIT―

I think that my lawsuit has already started at the time when President Obama publicly spoke about “frivolous” medical malpractice lawsuit. It was not good timing for my lawsuit because President Obama labeled medical malpractice lawsuit as “frivolous.” Naturally, the American president’s opinion about medical malpractice lawsuit had a great influence on the general public and the government workers. The question whether a lawsuit is frivolous, or not, should be judged by the jurors—the people—in a jury trial, but not by the government. I do not see the reason why the American president even had to talk about the subject in his public speech. There are probably bad people who try to make money by suing a doctor or a hospital; but, I want President Obama to think carefully who really initiates a medical malpractice lawsuit or what triggers the lawsuit. If there is no bad result from medical treatment, there is no lawsuit that follows it. President Obama should focus more on bad doctors because doctors are “licensed” to cut his or her patient’s skin, bone, and nerve in a windowless room. I still respect President Obama as a first black president; however, if he had had any experience as a “black” person and he had felt, then, that he had been misunderstood and mistreated because he was black, he should not have labeled medical malpractice lawsuit as “frivolous.” He stereotyped the image of the medical malpractice victims as bad people, like criminals. Isn’t it similar to what white people did to black people in the past? As the pro se litigant, I was already treated as a second-class person—treated as less important than the lawyers. However, because my case was, particularly, medical malpractice, I felt that I was looked at, additionally, as if I were one of the bad persons who had filed a “frivolous” medical malpractice lawsuit.

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―CALIFORNIA GOVERNOR JERRY BROWN―

When I wrote to Senator Dianne Feinstein a letter about Judge Freeman, I also wrote to request her assistance with the LEP issue. In the letter, I included the history of all the relevant events that I had experienced in the medical malpractice case. I also explained who I am since I really did not wish to give her the impression of my lawsuit being “frivolous.” Senator Feinstein wrote me a nice letter with her fresh signature; however, she wrote in her letter, “Unfortunately, many issues within the State of California are beyond my jurisdiction as a United State Senator.” She suggested me to write to Office of California Governor Jerry Brown. So, I did.

I pretty much wrote the same thing to Governor Brown as what I had written to Senator Feinstein. I again included the description of who I am so that Governor Brown would not think of me as a pro se litigant who is bringing “frivolous” lawsuit against a doctor.

“. . . I am Japanese native (born and raised in Japan) . . . I would like you to have some understanding about general nature of Japanese natives who were raised in Japan by their Japanese parents. I am confident to state that many Japanese natives are honest, quiet and modest people who know their duties and follow the rules of the nation in which they live. Many of us do not complain much about others; instead, we make effort to get along with the others who may hold a different view. We tend to make an understatement about our complaints, control our emotion, and let go the dispute on a subject matter that average Americans would be most likely to file a lawsuit.

The Japanese way of living and thinking as I have just explained above is based on a combination of three different beliefs: Confucianism, Buddhism, and Shintoism. Among them, Confucianism is the highest belief in the Japanese person’s relationship with other people. One of the basic virtues taught by Confucianism is an obligation of selflessness and humaneness for other individuals. Being truthful to others is one of the most important principles. With the belief and in the trustful environment where I was raised, it was impossible for me to plan to lie to others and for me to have even a slightest idea that a lawyer would lie. I have understood that a lawyer is “a person of law” and I have believed in it.

The Japanese who do not like a dispute generally do not like a lawsuit that stays in public records. We tend to view the act of suing someone as something we regard as embarrassment and shamefulness. Therefore, when I decided to file a complaint against Jay K. Benard, DPM, to the San Mateo County Superior Court, there was a strong reason for me to do so. I had been enduring physical and emotional pains with patience for long time before I made the decision to sue him.

The disgrace and humiliation that I had experienced through this lawsuit was extraordinary and beyond the words that I can describe to you. Only the reason I had the courage to move through the litigation was that I had and still have a strong idea that the truth should always prevail in the end; and, with the belief, I was committed to fight against the people who had been lying. . . . ”

The California Governor did not read my letter; instead, an apparently computer-generated letter without a signature was mailed to me. The letter stated, “Due to the legal nature of your situation, the issue you wrote about falls outside of the Governor’s jurisdiction. We encourage you to speak with an attorney who can inform you of the options available through the legal process. If you cannot afford an attorney, the following associations offer resources that can help direct you to free legal service in your area: [listed] American Bar Association and California Bar Association. We hope you find this information to be helpful. Again, thank you for taking the time to contact Governor Brown’s office.” In the letter that I had mailed to them, I had also already explained that I could not find a lawyer and there were no free legal services what were available in my case. I had already contacted with the American Bar Association which then had referred me to the California Bar Association. The California Bar Association is the State Bar of California: it is just a different name, but, the same organization. In my previous letter that the office had already received, I had even included the issues that I had encountered with the Medical Board and the State Bar of California. Both issues should be under the Governor’s jurisdiction. It seemed that nobody in the Governor’s office had read my letter.

Thus, every time I turned around to someone or some organization to get any help, I was up against a blank wall—at every department, or at every level of the California State government.

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―MICRA: THE ORGANIZED CRIME―

The California justice system and the court laws themselves have been set up against pro se litigants and have been ignoring the people’s inherent rights of access to fair justice. I have begun to see this whole setup as the organized crime.

But, as I looked into this further, I realized there were more layers in the circle of the organized crime. The circle was even bigger than I had initially thought. It included the California law, MICRA, and the California Medical Association (a professional organization representing the physicians of the state of California).

The California law MICRA (the Medical Injury Compensation Reform Act) was a statute enacted by the California Legislature and became law in 1975. The law was intended to lower medical malpractice liability insurance premiums for healthcare providers by decreasing their potential tort liability— in other words, by decreasing the compensation to the victim of medical malpractice. The California Medical Association stated that MICRA, in turn, was to provide a better care to California patients by lowering the cost of healthcare services and increasing their availability.

Although the California Medical Association has said to the public that the MICRA law lowers the cost of healthcare services, the cost has kept going up during the last 40 years—a dramatic change, particularly, in the recent years. Thus, the California Medical Association has completely misled the public. Now, it is clear that the MICRA law was created only for the doctors who focused on their own benefit, but not for all Californians to benefit from it. A very important thing that the general public does not know is that, because of the MICRA law, the victim of medical malpractice has very little, or virtually no, chance to find a plaintiff lawyer who wants to represent the victim’s case.

The MICRA law caps non-economic (“pain and suffering”) damage to the victim of medical malpractice cases at $250,000. Because of the MICRA’s victim compensation cap, the law also creates attorney’s fees cap. It takes 2-3 years, sometime even longer, to complete a medical malpractice lawsuit. Attorney’s fees are taken from the amount of the settlement. It means that plaintiff lawyer’s earnings are limited even if the lawyer successfully won the case.

Because the MICRA law has not changed since 1975, the attorney’s fees also have not changed for 40 years. (The cost of living has increased more than 330% since MICRA took effect.) Since the attorney’s fees are so low and lawyers make a practical decision, California plaintiff lawyers are not interested in taking any medical malpractice case on a contingent base.

I struggled to find a plaintiff lawyer to take my case. I talked with about a dozen of lawyers, but many of them turned me down. One lawyer who was willing to take my case asked for the hourly fee of $250. Another lawyer asked me a large sum of money as advance payment in addition to an hourly fee. It was impossible for me to pay that much money for the lawsuit that possibly lasts 2-3 years.

Medical malpractice constitutes a failure to deliver a “reasonable standard of care” in the treatment or procedure for an injury or sickness. In other words, the doctor’s performance did not follow what other physicians would have done under the same circumstances. Not only Dr. Benard made no effort to provide a solution to remove the pain that I had continuously complained, but he also tried to conceal the other complications that were caused by his surgeries.

My decision to bring a lawsuit against him had no change although I could not find a lawyer. At that time, I was not aware of the reason why I was not finding any lawyer to represent my case on a contingent base. I had no knowledge about the MICRA law when I started looking for a lawyer. Only later, I gained some knowledge about the MICRA law accidentally when I was searching for some medical malpractice cases on web.

Many of us use a doctor and a hospital regularly; but, we have not been informed about the California’s MICRA law and how the law would affect all the Californians if something went wrong in the treatment by healthcare providers. A bad result by an improper treatment can happen to anyone. But, currently, no California law requires doctors or hospitals to provide their patients, before any treatment, with the information about the MICRA law.

The MICRA law prevents the victim of medical malpractice from receiving a fair compensation amount; and, as the result, the same law prevents the victim from even having a legal representation which is essential to be successful in medical malpractice lawsuit. When the jurors in a jury trial concluded that the victim should receive the “pain and suffering” compensation of, for instance, $1,000,000, their decision should be final. If, in the end of 2-3 years long litigation and two weeks long jury trial, the court tells to the victim, or to the family, that the compensation should be only $250,000 because of the MICRA law, what is the reason to have even a jury trial? Should not the jurors—the people who have intensely listened to what had happened to the victim—decide on what the victim’s injury is worth? But, currently, because of the MICRA law, no matter what the jurors decide, the “pain and suffering” award is limited at $250,000.

Among many medical malpractice victims, one of the most outrageous cases, I feel, is Mr. Alan Cronin’s case; the young man lost both his arms and legs due to medical mistake. Yet, because of the MICRA’s limit, Mr. Cronin received only $250,000 for loss of four limbs. (Alan Cronin's case YouTube )

If the victim is an unemployed person, a young child, or a retired person, because of the MICRA law, the victim, or the family, receives no economic damage. That is because the victim did not have any income before becoming the medical malpractice victim. For instance, the mother who lost her baby due to medical mistake may get only $250,000 for the “pain and suffering” damage award because the baby never worked and never made money; therefore, the MICRA law considers that there is no economic loss to the mother. That is how MICRA works. Ridiculous!

The concept of placing a “monetary” value to measure the value about everything including a human life is coming from mammonism: the worship of money. In other words, the MICRA law makers consider that a person who makes more money has a greater value of a human life than another person who makes less money, or no money. To illustrate this, the total value (economic and non-economic award) of a three-year-old child’s life is $250,000 and the total value of a millionaire’s life is $1,250.000, for instance.

The California’s MICRA law was not created by the votes of the general public. When the MICRA law has power over the jurors—people, no real jury trial for the victim exists. The MICRA law violates the victim’s constitutional right to have a jury trial by people when the outcome of the jury trial does not apply to the victim fully. The government should not have any power to influence the outcome of the juror’s decision. That is what a jury trial— a trial by people—is.

Thus, the victim’s basic rights—1) to have a legal representation that is absolutely necessary to win the case, as in my case, and 2) to receive the compensation of what the trial jurors decided, as in Mr. Cronin’s case—have been taken off by the California’s MICRA law.

Additionally, not all medical malpractice insurance companies are located in California. The companies in the other states do not have to pay the tax to the State of California. It means that the companies receive much money from California doctors but return very little back to Californians. For instance, PICA (Podiatry Insurance Company of America—Dr. Benard’s medical malpractice insurance company) is located in Tennessee. California podiatrists send their money to the company in Tennessee; then, PICA pays their tax to the State of Tennessee, but not to the State of California.

If a larger amount of the compensation is given to the suffering victims in California, more of the money that was paid by the California podiatrists to the medical malpractice insurance company in another state would come back to Californians. However, currently, the California doctors’ payments are not benefiting to the Californians or to the patients because of the MICRA law. When I see the big picture, I am convinced that the California Medical Association’s statement: “[MICRA] provides a better care to the patients by lowering the cost of healthcare services and increasing their availability” is not true. Certainly, all the Californians are not benefiting from the MICRA law. When the statue was elected in 1975, California Trial Lawyers Association (CTLA is the organization we now know as Consumer Attorneys of California) president Elmer Low stated, “Two powerful special interests – the CMA and the insurance industry – have won a major victory at the expense of the citizens of this state.” (http://www.protectconsumerjustice.org/how-micra-came-to-be.html) Mr. Low was right.

Let me walk through the entire path how the MICRA law works.

First, the MICRA law was initiated to cap victim’s compensation. Then, the compensation cap created the attorney’s fees cap. Then, the attorney’s fees cap caused plaintiff lawyers to quit representing the victim of medical malpractice. Then, the lack of plaintiff lawyers caused for the victim to represent himself or herself in court. Then, the pro se litigant victim fails in the legal proceedings because he or she does not have enough law knowledge to present the case properly.

Thus, when the MICRA law caused the victim not to have a proper legal representation for his or her case, the law basically terminated the victim’s chance to win the case because it is impossible for the pro se litigant to win the complex medical malpractice lawsuit without a lawyer.

MICRA’s removing plaintiff lawyers from the victims is MICRA’s removing the victims’ right to access to fair justice. The MICRA law was designed so that the victim will always lose and the doctor will always win the medical malpractice case. That was exactly how the California Medical Association had planned in 1975.

In my particular case, first, the MICRA law stripped off plaintiff lawyer who represents my case on a contingent base from me; and, it led me to become pro se litigant. Then, the court treated me unfairly by using the laws that were created only for lawyer to understand and, therefore, to be able to take advantage of the weakness of pro se litigant. The court did not like me because I did not have, but I should have had, according the court, the laws and proceedings knowledge that lawyers normally do. Thus, I encountered with the court’s prejudicial view toward pro se litigants. Additionally, I had to tolerate the hostile court environment as if I were one of those who brought a “frivolous” medical malpractice lawsuit without a lawyer. The general view towards a pro se litigant is that the litigant could not find a lawyer to represent his/her case because there were no merits and justifiable reasons for any lawyer to support the case; in other words, many “pro se litigant” cases are “frivolous.”

Mr. Gibson, defense lawyer, was a good looking tall and young white man whose appearance showed his good background. He could easily frame me—a pro se woman who is short, yellow skinned old Asian and spoke English poorly with no knowledge of law—to fail in the complex legal proceedings. The court was careless about the defense lawyer’s misconducts against me and reluctant in assisting me, regardless of what the court rule 10.960 states or what the federal law requirements are for LEP pro se litigants. Thus, the California State government and the California Medical Association have designed the MICRA law so that the medical malpractice victim pro se litigant would fail in the current anti-pro se litigant court environment and legal system in California.

Thus, the MICRA law has “a complete passage” for the medical malpractice victims to fail in the lawsuit.

The MICRA's constitutionality was repeatedly questioned, but was always upheld by the Supreme Court of California or the California Courts of Appeal. The MICRA law, that has benefited only doctors and medical malpractice insurance companies but affected all California taxpayers negatively, has been protected by the California State government, the California Medical Association, and the other MICRA supporters for 40 years.

If I don’t call this “California’s MICRA Mafia,” what other words do I use to describe this California State government’s organized act against the victims of medical malpractice. The MICRA law is unjust law. The law was created by the California government who vowed to economic and political power of self-interest groups: the doctors, the insurance companies and the politicians who support them.

If there were no MICRA law, I would have found a plaintiff lawyer to represent my case and I would have won my case. I was simply foolish to even write a letter to California Governor Jerry Brown. I did not know that he was the same person, Jerry Brown, who had signed MICRA into law in 1975 until I started reading the history.

I met a kind Chinese man, owner of a computer equipment rental store. On my trial day, when I found that the San Mateo County Superior Court did not supply a projector for the litigants and I urgently needed to rent a projector for my Powerpoint presentation. After calling a several rental stores, I found him. The Chinese man was nice enough to bring a projector and meet me at the entry of the courthouse. After I lost the case, I went to his store to return the projector. Then, he told me the story of his daughter—his only daughter—who had died by her doctor’s medical mistake. He said that he had thought about suing the doctor and consulted a lawyer; but, then the lawyer told him that, by the time the lawsuit was over, he would be just so exhausted by the lawsuit but would not gain much money from the lawsuit, because of the MICRA law. So, the Chinese man decided not to file a lawsuit. As I prepared to leave the store and when I started writing a check to pay the projector rental fees, he told me, “You lost your case today. You do not have to pay. ” I cried. He gave me a red rose to comfort me. I wonder how many other Californians have been giving up their lawsuits because of the MICRA law.

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―MICRA’S VIOLATION OF THE US AND CALIFORNIA CONSTITUTIONS―

Ninety-nine percent of the U.S. population cannot pay the high rate of lawyer’s service fees. Therefore, only the way that they can have a legal representation in court is to find a lawyer who takes their case based on a contingent base.

As I explained, the California’s MICRA law made it impossible for medical malpractice victims to obtain a plaintiff lawyer on a contingent base. It is a form of discrimination as well as criminal act against all the victims of medical malpractice.

The way of how the MICRA law deprives the victim’s inherent right of access to justice is unconstitutional. The way of how the California State government applies to all the Californians with the MICRA law that was created by a small special interest group is unconstitutional. The way of how the medical malpractice victim’s compensation that was decided by jurors [=people] is overpowered by the MICRA law is unconstitutional.

America, who speaks justice, fairness, and non-discrimination to the world, has completely failed to provide the essence of democracy to its own people.

Thus, the California’s MICRA law violates a fundamental principle of fair justice: jury trial, due process, and equal protection that are written in the U.S. and California Constitutions.

The California’s MICRA law (1) violates the First Amendment that protects individuals' rights of access to justice by a jury trial; (2) violates due process in the legal proceedings when litigant reserves to receive a support of an adequate legal representation; (3) violates equal protection for forced-to-become pro se plaintiff against doctor-defendant who has a full legal support from his lawyer and a full monetary support from the medical malpractice insurance company.

Furthermore, the California State government violated the U.S. and California Constitutions. The California State government violated the patient’s right to know about the MICRA law before any medical treatment: 1) the California State government should have required all healthcare providers to inform their patient about the existence of the MICRA law and the limits before any medical treatment, but the California State government did not; and, 2) the California State government should have required all healthcare providers to receive a written consent from their patient about his/her knowledge of the existence of the MICRA law and the limits—specifically about $250,000 limit for a medical malpractice “pain and suffering” damage award, but the California State government did not.

I was never informed by Dr. Benard about the MICRA law and I never signed any consent to recognize the existence of the MICRA law and the limits.

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―MY MEDICAL MALPRACTICE CASE―

Representing oneself in any lawsuit is hard enough; but, representing oneself successfully as the victim in medical malpractice lawsuit is virtually impossible. The victim has undergone psychological and physical damages due to the unexpected and unsuccessful result of the surgeries; and, while carrying the damages, at the same time, the victim pro se litigant needs to learn the court laws, rules, and the system. They are all very difficult to understand.

I had trust in my doctor; that was why I even allowed him to perform the surgeries. I wanted to continue having trust in the doctor even after the surgery results were not what I had expected before the surgery. My feeling of the trust gradually decreased when I started seeing him acting strangely. The period of the transition in my feeling from trust to distrust was very difficult time for me to live every day. The emotional struggle is the one such that now you have lost the trust in someone whom you have completely been believing in. While I was limping, I still tried to keep my full-time job and continue a normal life. However, I worried about the surgery result so much that I could not focus on my work. After nine months, not only the unusual pain never decreased; but, new different pains also started developing all over my left foot. It was clear that several complications had developed due to the surgeries by Dr. Benard. I had a sensation on a several parts of my left foot as if the parts were being pounded by a hammer repeatedly throughout a day and the sensations were increasing every day.

I had to find a new doctor who would agree to perform corrective surgeries and needed to speak with my health insurance company about the second surgeries. Because I had a HMO health insurance, my choice of doctor was limited. Besides, not all doctors wanted to treat the problem that was caused by another doctor because they preferred not to get involved with any possible lawsuit. In these circumstances, I was anxious to remove the pains as soon as possible so that I would not limp in public, particularly at work. I was under tremendous pressure and was emotionally unstable. I believe that this all together affected my work performance and it led to the loss of my work.

The doctors who were unrelated with my lawsuit had sympathized about the situations that I was in; but, they became unfriendly to me as soon as they found that I did not have a lawyer. They avoided me for any possible involvement with my lawsuit. For instance, my primary doctor whom I had known for about 15 years and I had counted on to support me tried to avoid any contact with me as if I was doing something wrong. Thus, I experienced the unexpected cut-off of my relationship from others and the uncertainty of what to believe and whom to believe in anymore.

Carrying all these stress, the court procedure started moving forward. Not knowing what was going on, I was basically like a swimmer in the ocean without a swimming skill, nor a life jacket or float. In the court, I was treated disrespectfully and ridiculed even by the court clerks because I did not have a lawyer. If I asked any question to them, they told me to go to a law library. A several court clerks repeatedly told me, “You need a lawyer, you need a lawyer.” I felt that they looked down on me. When I went to a San Mateo County Law Library, as the court clerks had suggested, the library assistants would not help pro se litigants “strictly.” They told me that they were not allowed to provide any assistance to pro se litigants. Does this library exist because what the Californians pay for?

Meanwhile, I was also tormented by the defense lawyer’s actions such as subpoenas to the doctors whose treatments are irrelevant to my lawsuit and numerous false statements that he continued to make without any hesitation; and, the court placed trust in him, but not in me. I still made a continuous effort to find a lawyer even until one month before the trial. But, as I have explained, due to the MICRA law, I could not find any.

This lawsuit had turned out to be the most torturous experience I ever had to endure in my life. It was all due to the California’s MICRA, which had cut off my access to have a plaintiff lawyer.

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―A NATION OF LAWS―

I like when President Obama proudly speaks of this country: “We are a nation of laws.” It is a wonderful and strong statement that echoes what America is to the world.

When the American president and his wife, and the most powerful state California governor and his wife are, all, lawyers, the government is overpowered by the domination of lawyer and it is essentially operated by lawyers.

Needless to say, law and lawyer are closely related as “lawyer” is defined as “a person who practices laws.” However, law produces a good result only when lawyer uses the law correctly. First of all, law itself must be just before the government applies the law to the people. When the law is unjust, and the government is blind to the unjust law and applies the unjust law to the people, the government itself is unjust.

The American government, which was once blind to unjust law, used the unjust law, and created the cruelties from the unjust law against the black people. Now the government, which is blind to a similar unjust law, is using the unjust law and creating the similar cruelties against the pro se litigants based on their educational background and based on their national origin, as in my case.

Next, even though law itself is just, if lawyer uses the law in an inhumane way by manipulating the law, the law can turn into an evil. For this reason, lawyer should be the person with a highest ethical standard. Furthermore, the lawyer should provide moral examples to the other people in America, if America is, or wants to be, a nation of laws. A high morality of lawyers is the key essence to become a nation of laws.

When the government is careless about the morality of their lawyers, the nation will produce social disorder: chaos of society. I have seen already the occurrence of the disorder of the American society when I compare it the orderly Japanese society.

A lawyer has a mighty power in legal proceedings. Lawyer can even let a criminal free in the exchange of their work and money. For those who have the money to buy the power, lawyer is great; but, for the others who do not have the money to have a powerful lawyer who stands for them, lawyer will become the person who makes them suffer. Without your own lawyer, you are nobody in court and your case is nothing even outside of court.

With the MICRA’s unjust law, you would just have to suffer and endure whether a doctor had cut your arm or leg off, or taken out a half of your brain by mistake because you have no chance to win a medical malpractice lawsuit without your own lawyer. Without your own lawyer, the court would not believe in you even if you repeat hundred times that doctor is lying, or defense lawyer is lying, like I did. Without your own lawyer, you are just like a barking dog.

Meanwhile, the doctor can get away from committing any criminal act since he has both lawyer who defends his act and medical expert who testifies deceptively; and, furthermore, the criminal team is supported by the California State government agencies such as the Medical Board of California and the State Bar of California.

If President Obama and California Governor Brown do not see this reality, America will continue to produce more criminal lawyers who continue to provide the opportunity for criminal doctors to hurt or even kill next patients. If the lawyer president, or the lawyer governor, does not think to stop their criminal acts seriously, I wonder who else can do.

I wrote a second letter, this time, to both President Obama and his wife and requested to create a strict law against unethical lawyers.

I wrote: “Although I described many things in this letter, I have only one thing I want to ask you: that is to create a strict law to prevent any lawyer including a civil case lawyer from lying in the legal proceedings and manipulating laws and court rules against a pro se litigant. A lawyer should not lie to begin with. I feel that this very basic concept, ‘no lie and no manipulation’, will help many pro se litigants move one step closer to fair justice. I think that putting this simple law (common sense) into effect can be relatively quickly done. Then, you can rescue many honest pro se litigants right away from being eaten alive by the lawyer who is in an adverse position. The reformation of the court rules or legal structure for pro se litigants will take years; and, it is likely to receive much opposition from the American lawyers.” (The reason I said a “civil case” lawyer is because Mr. Calix of the State Bar of California had told me that a criminal lawyer must tell all the truth, but a civil case lawyer does not need to tell everything.)

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―IMMORALITY―

The San Mateo County Superior Court ridiculed, insulted and humiliated me because I did not have a plaintiff lawyer: “You don’t know what to do nor you have a lawyer” and “a lawyer would know what they can say and not say.” These words of the court exhibit discrimination against all of the victims of medical malpractice who cannot find a plaintiff lawyer to represent the case because of the MICRA law.

The court saw a complete imbalance in the knowledge of law and English between the defense lawyer and me; yet, the court placed judgment against me by having neglected both the California Rules of Court for the pro se litigants and the federal requirements for the LEP litigants.

Observing and acknowledging the complete imbalance, how can any judge with a sense of humanity and justice make a decision to place judgment against one side over another? One of the jurors who found the imbalance questioned to the judge, “Why the plaintiff doesn’t have a lawyer?” Then, the judge responded to the juror, “Everybody has the right to have a trial without a lawyer.” The judge did not understand the question or pretended as if he did not understand the question. Have you seen a movie that shows the Romans throwing a human to the lions in the arena and letting the lions eat the human alive? It was a public entertainment. I was eaten alive in the trial just like the Romans movie—lions eating a human. The judge, defense lawyer, his associates, and defendant doctor had a great time seeing me eaten alive—losing the case.

The concept of Mr. Calix of the State Bar of California—a lawsuit is like “a game”—makes me shivering. I do not see much difference between the lion-eating game and Mr. Calix’s lawyer’s game in the concept. It was a game to Mr. Calix as if the lions-eating-human was a game to the Romans. Mr. Calix’s game is a cunning game—legal maneuvers and trickeries—that hurts unprotected human who has no lawyer of his or her own. He told me that defense lawyer did not have to tell all the truth. In other words, the lawyer can tell only a half-truth. He does not think that a half-truth is dishonesty. I think that a half-truth is a combination of manipulation and lie, and it is worse than lie itself.

Mr. Calix has no moral judgment; yet, he is one of the public servants who are employed by the State of California. Mr. Calix creates his own definition of “honesty” that does not appear in a “world” dictionary. If he spoke to the world what he had told me, the State Bar of California, the largest bar association in the United States, would lose the respect from the world; and, the people in the world will assume that the State Bar’s view of honesty, or dishonesty, reflects an American way of being honest or dishonest.

Furthermore, surprisingly, the Supreme Court of California agreed with his argument and denied my petition: Accusation Against Lawyer. When I asked the Supreme Court the reason of the denial, they told me that the reason is confidential. The country where, I have believed, is “very open” in the operation is suddenly closed to keep the reason of denial as “confidential” out of the public.

The California justice system is corrupted; it lacks transparency and fairness.

California being an economically powerful state, the world will view that the California justice system is very likely to represent the American justice system; in America, a half-truth implies honesty and legal maneuvers and trickeries are acceptable practice. However, a half-truth is immoral to the rest of the world. If not to some of the western nations, it will be certainly viewed as “immorality” to most Asian nations.

The way of how Mr. Calix thinks how a lawyer should get his or her job done is Machiavellianism; it is a concept that a good end justifies any means—“with a worthwhile end one could justify any means” (by Niccolo Machiavelli). It is a political means considering that what you accomplished is far more important than how you accomplished. In other words, defense lawyer can use any method, whether the method is ethical or unethical, as far as he/she can achieve a good end: getting a job done to make money.

It is the same Machiavellianism concept that once America used against Japan, without examining whether the means is ethical or not, to achieve the goal quickly—end the war—by dropping the bombs to Japan. (From Machiavellian Realism and U.S. Foreign Policy: Means and Ends by Howard Zinn, 1991) The means had killed 200,000 ordinary Japanese: children, women and elders. Mr. Zinn stated in his writing that Machiavellianism dominates American foreign policy. It seems to me that the same concept has been also applied to the American lawyer’s business practice.

First, I was the victim of the unethical doctor; second, I was the victim of unjust law MICRA; third, I was the victim of the unjust system of the California courts; and, the last, but not least, I was the victim of the unethical lawyer.

On March 10, 2011, thanks to the judge who had found the defense lawyer’s contradicting statements, he denied the defendant’s motion of summary judgment. Next day, Mr. Gibson was so angry that he verbally attacked me by yelling “What you are doing is extortion!” It was March 11, 2011. It was the day I heard the news about Tsunami in Japan. Without any hesitation, I can state: months after Tsunami, the world was surprised by the news of the honest Japanese. They had returned $78million in cash found in earthquake rubble: “In a testament to Japan's culture of honesty, finders have turned in $78 million to authorities and some have waived their right to the money even when the rightful owners cannot be found. ” (Los Angeles Times) (http://articles.latimes.com/2011/sep/22/world/la-fg-japan-returned-money-20110923) I want to tell the people who have looked at me as if I was a criminal that it is Japan where I was born and raised to be honest. Honesty is in my blood. I am very proud of being Japanese. To me, being truthful is a basic human responsibility as a member of the society.

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* MORE LINKS *

How MICRA came to be
Constitutionality of Medical Malpractice Damage Caps
It's time to fix California's outdated medical malpractice law

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