A court in Tokyo has ordered a hospital to pay a 60-year-old man $411,100 (or Y38 million) for its negligence in 1953 in the switching of him with another baby. The man’s biological family was quite wealthy and the other baby was given a life of luxury with his other three brothers. The man however was sent to a poor Japanese family, never married, and is now an unemployed truck driver. What was interesting about the case is that at least one of the couple suspected something was wrong after the switch.
The other baby was born just 13 minutes after him at the hospital. He was raised by a widow who supported her children as best she could in a one-room apartment with only a radio.
Back over at the affluent family, the other three brothers were long suspicious of their older brother who looked nothing like them. After their parents died, they had a DNA test performed, checked hospital records, and confirmed the identity of their missing brother.
The three biological brothers are successful professionals.
What is interesting is the case showed that both mothers were immediately suspicious of a switch due to their different appearances and his real biological mother noted that the baby came back from a bath with different clothes. That did not raise any apparent issue of contributory or comparative negligence.
One report estimated that there are 20,000 baby switching cases each year. Robert R. Rusting, Baby Switching: An Underreported Problem That Needs to Be Recognized, 17 J. HEALTHCARE PROT. MGMT. 89, 89, 97, 99 (2001).
Notably, some (as the dissenting judge in a Wyoming case) oppose recovery in switched baby cases, insisting that it would only worsen problems with “medical malpractice , insurance and possible resulting loss of doctors in Wyoming.” These cases often raise question under negligent infliction of emotional distress (NIED) and whether there is foreseeability in the harm and even whether the mother (as opposed to the baby) is the direct victim. Some cases downplay the emotional distress from such separation if it is relatively short. For example, in August 15, 2003, a Ms. Filson was given the wrong baby for nursing at Baptist Hospital in Memphis, Tennessee. She was suspicious and confirmed the switch after the baby would not feed. She and her husband told the staff that the baby looked different and that their numbers did not match. They sued for emotional distress. However, the Tennessee appellate court adopted a very high standard to effectively block such claims, ruling that “the plaintiff must prove by medical expert or scientific proof that the emotional injury is so onerous as to render a reasonable person, normally constituted, unable to cope with the mental stress caused by the negligence.” Filson v. Seton Corp., 2009 WL 196048. That is, in my view, an unnecessarily high standard that denies legitimate claims of mothers who were traumatized by such negligence.
This is the type of case that is exceptionally hard in terms of the awarded damages. In Russia, a recent such case led to $100,000 awards for the families but an earlier such case in Russia was more complicated because the children were raised in conflicting cultures: one Russian and Orthodox Christian and the other ethnic Chechen and Muslim.
One case last year involved a baby switch that was not discovered until a baby was breast fed by the wrong mother — requiring the baby to go through HIV and Hepatitis tests every couple of months.
When we had our four kids, there was an rash of such cases in hospitals in the area. I not only insisted on dressing the kids in our own outfit, accompanying them, and I even marked their feet with a sharpie. After dealing with these cases as a torts teacher, I was determined not to join the list of victims. I view this form of negligence to be one of the very worst at hospitals because it is easily avoided though training and low cost measures.
What is interesting in the Japanese case however is determining damages for a lost lifetime, including being raised in a more affluent family.