From Komei Shimbun, November 15, 1997

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Towards Prevention of SIDS (Sudden Infant Death Syndrome)
No More Tragedies (3): Future Trend of Court Rulings
SIDS or Suffocation: Parents and Childcare Providers Fight in Court over Cause of Death

A sudden death of a child in a hospital or at a nursery often leads to a court battle over the question of what caused the death–SIDS or an accident (suffocation).

At 1 a.m. on February 8, 1993, a second daughter, Naho, was born to Fumiharu and Fukumi Kushige, residents of Yokohama City. The baby weighed 3,286 grams, and both baby and mother were fine.

At 2:30 a.m. a day later, however, a nurse found Naho dead in the nursery of the maternity ward, lying on her tummy. Police was called in, and an autopsy was performed on the infant’s body. The cause of death was determined to be “suffocation caused by occlusion of the naris.” Postmortem lividity suggested that the body had been discovered more than two-and-a-half hours after the death occurred. In other words, the infant had a very brief life lasting for only 23 hours.

A maternity ward nurse testified as follows: “Two hours before the death was discovered, I fed milk to baby Naho, placed her in bed face down, and left the nursery. Later, in passing, I saw her crying, shaking her head up and down. But I did not enter the nursery to examine her.”

At first, the hospital was totally apologetic. A half year later, however, the Kushiges received a letter from the hospital declaring: “Since your baby was sleeping with her head slightly turned to the right, we concluded that the cause of her death was SIDS rather than accidental suffocation. Inasmuch as SIDS is a medical disorder, the hospital cannot be held liable for the death.” Along with the letter, the hospital unilaterally sent the couple a list of past court cases where the plaintiff (parents) brought a suit against childcare providers charging that the cause of death was suffocation, but lost the case when the court ruled that the cause was SIDS.

When the Kushiges who had grieved over the death of their baby read this letter, they became infuriated with the irresponsible attitude of the hospital. In September 1993, they filed a damages suit against the hospital at the Yokohama District Court.

The case, however, went against the couple. The District Court rejected their complaint on August 19 of this year. On the disputed cause of death, the presiding judge declared that it could be presumed either way, and therefore it was not possible to conclude unequivocally that the death was caused by suffocation. The court then dismissed the plaintiff’s claim on the ground that it was not fully substantiated.

To the Kushiges who had been confident of the victory, the decision was a complete surprise. On September 10, the couple appealed the case to the Tokyo High Court.

Lawsuits involving sudden death of an infant are not uncommon. For the period since 1979 alone, decisions were handed down in 22 of these cases. Only in one case, however, the parents won a favorable decision against the childcare provider who used SIDS as a defense. Why do parents keep losing their cases?

In a suit claiming for damages, the burden of proof is on the plaintiff. In other words, the parents must prove that the defendant was negligent. In the field of medicine, however, the criteria for differentiating SIDS from accidental suffocation are not clearly established. Reflecting this state of affairs, different medical experts form different opinions on the same case. Divergent medical opinions lead to a judicial conclusion that available evidence can be interpreted in either way, which in turn translates into a ruling that the plaintiff’s claim is not substantiated and therefore must be rejected.

Between deaths caused by SIDS and suffocation, the three primary findings (including the congestion of internal organs) are similar, and therefore their clear-cut differentiation is often difficult through either a postmortem observation or a complete autopsy. In the final analysis, the determination must be based on the conditions under which the death occurred–e.g, the quality of breathing and the sleeping position of the baby. When a child dies in a hospital or at a nursery, the person who discovers the death is invariably a member of the staff there. In actual practices, hospital or nursery staff members remain silent, rarely revealing the circumstances of the death to the victim’s parents accurately and in detail. Proving the negligence of the caregivers, therefore, is extremely difficult for the parents.

Fukumi Kushige protests in tears, “Attributing all deaths to SIDS is absurd. This court decision is utterly unjust. Unlike the childcare providers, the parents must spend their lifetime under a heavy burden of agonizing grief. They are using SIDS as an absolution for their faulty childcare management.”

Nevertheless, the couple continues challenging the difficult task of substantiating their claim. With the cooperation of their friends, they are developing a video which is to answer the question of whether a newborn baby is capable of averting suffocation. The Kushiges also asked each of the eight members of the Japan SIDS Study Group consisting of experts in the fields of pediatrics, forensic medicine, pathology, and emergency medicine. They were asked if baby Naho’s death was from SIDS or accidental suffocation; seven of them were of the opinion that it was caused by accidental suffocation.

To the question people often ask, “Why do you want so much to win the court case?,” Fukumi Kushige answers, “We cannot change the government’s policy unless we win this case.”

In August of this years, Fukumi, who had served as president of the Association for Studying Prone Sleeping, disbanded the organization in favor of the Parents’ and Attorneys’ Association for Studying Sudden Deaths of Babies whose membership consists of thirteen families and their attorneys involved in lawsuits. The association aims to work toward winning the cases by exchanging pertinent information such as autopsy reports, and by urging medical researchers to clearly establishing criteria for differentiating between SIDS and accidental suffocation.

Attorney Shigeru Sugeyama, caretaker of the association, has worked on lawsuits involving sudden deaths of babies for over 20 years ever since he first handled the case of baby Mariko who died in 1974 in Matsudo City, Chiba Prefecture. He states with great zeal, “Courts tend to attach importance to the judgment rendered by pediatricians. I would like to urge the Japan Pediatric Society to work closely with medicolegal experts to develop scientific and objective criteria for differentiating SIDS from suffocation. The counsel for the plaintiffs are prepared to enter into a dispute with pediatricians on the criteria.”

In the report scheduled to be published in March 1999, the Case Examination Committee of the Japan SIDS Study Group plans to announce a set of more definitive criteria for identifying SIDS, while incorporating a warning on the danger of prone sleeping position.

The future trend of court decisions will not only have bearing on the parents who are plaintiffs in the litigations but also impact broadly on society as a whole. If the courts begin to rule more favorably toward the plaintiffs, hospitals and nursery operators will be compelled to make a drastic reform in their childcare management systems, both in terms of operating methods and physical facilities. “It is a very sensitive issue for both government agencies and childcare providers,” concludes attorney Sugeyama, stressing the powerful social impact of these court cases.

(For directing inquiries to the Parents’ and Attorneys’ Association for Studying Sudden Deaths of Babies, call 045-242-1978.)

This article is translated into English by Mommy Home Childcare Service and reproduced here with permission of Komei Shimbun. Mommy Home Childcare Service is solely responsible for the accuracy of translation. All acts of copyright infringement including reproduction, translation, transmission, republication, and distribution of this material without written permission of Komei Shimbun, the copyright holder, are prohibited.

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