Switched At Birth: Japanese Court Awarded Over $400,000 To Man Raised By Wrong Family

hospital-nursery250px-SwitchedAtBirthIntertitleA 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.

18 thoughts on “Switched At Birth: Japanese Court Awarded Over $400,000 To Man Raised By Wrong Family”

  1. ha i guarantee you they wouldnt oppose resititution for the family if it was one of their members who had a baby switched at birth. the trauma comes from raising a child who is not mines, who share no genes with my family.

    from raising a child who may be sick and checking my family and the fathers against the illness we find none of the symptoms the child suffers from. thats what they call a rare illness which is in reality not as rare as they think. its rare because now 2 different family histories show no signs of this illness but yet the child has it….

    we did exactly what JT did when i gave birth. because 1 ems refused to take me to my stated hospital. which was in queens so my kids were born in woodhull hospital in brooklyn. thank god my kids were born looking either like their father or just like me and have grown up even more in the resemblance walk, talk, attitudes and personalities.

  2. The thing I like most about the judeo christian creation story is that people were only created after everything was already beautiful.

    Never did understand having children before that condition exists.

  3. Anonymously Yours 1, December 2, 2013 at 6:39 pm

    Dredd,

    You are familiar with the term “droit”? I thought it was apt…..
    ======================
    “droit: a legal right or claim.”

  4. Anonymously Yours 1, December 2, 2013 at 9:48 am

    Dredd,

    You Can lead a horse to water….however a mule must droit on it own…. No amount of leading works….
    ===========================
    That is a strong hypothesis.

    Even microbes are more “open minded.”

  5. Who else but Nick (don’t be provincial – we are United Statesians) would make a crack like that.

  6. Interesting case. I applaud the Tokyo court for attempting to put a value on an error of this magnitude. The Filson case example from Tennessee is a scary one.

  7. They put electronic chips in dogs. Put them on babies at birth. Give birth to your kids at home. Gone With The Wind: Prissy: I don’t know nuthin bout birthin babies Miz Scarlett.

  8. Dredd,

    You Can lead a horse to water….however a mule must droit on it own…. No amount of leading works….

  9. nick spinelli 1, December 2, 2013 at 8:58 am

    This must happen all the time. All those Asian babies look alike.
    ===================
    Not to Asians.

  10. “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.”

    Some so-called “Conservatives” negate their philosophical high ground with beliefs such as this. They may use terms like “people should take responsibility for themselves” but when it comes to money they don’t practice it. The medical profession is a quite lucrative one where professionals have people’s lives under their care. A simple mistake can lead to disastrous results.
    If a hospital is careless in their procedures and that lack of care leads to bad results, I would think that there should be appropriate relief to those harmed, to the extent that any relief is possible. Unfortunately, that “relief” can only be provided in terms of dollars in almost all cases. Those that would limit tort relief as a political principle are not real Conservatives, but are protectors of wealth. The real Conservative view would be to have the Hospitals and Doctors suffer to pay damages for their careless acts. That would be taking responsibility for oneself and also would hopefully serve as a deterrent to sloppy medical practices. Incidentally, that would also be the Liberal viewpoint too. The essence though is that this is not a political judgment, but merely the right thing to do regardless of ones’ politics.

  11. 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.” – JT

    That is the way the American Working Family Dinosaurs see things too.

    Their country has been switched out from under them.

    A much more difficult task than switching a baby.

    But the biggie passes on while the comparatively much smaller infraction gathers some moss.

    “There outta be a law.”

    Big Pharma Karma.

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