I Guess That’s Why They Call It The Blues

A man in Japan has been awarded $371,000 in damages after he was switched at birth, and subsequently denied access to his rich birth parents.  He instead lived a life of poverty, rather than the affluent lifestyle he likely would have enjoyed but for the hospital’s mistake:

It was almost 60 years before a DNA test revealed the life-changing mistake by a hospital worker who had bathed the newborns and returned them to the wrong mothers.

The men spent decades living each others’ lives: one man living off welfare checks before working as a truck driver, the other enjoying a private education and now runs his own real-estate business.

“I feel … regret and also anger,” the poverty-stricken man, who has withheld his identity, told a press conference on Wednesday. “I want them to turn back the clock.”

I’m not sure that such a case could be brought in America.  For starters, there are Statute of Limitations issues.  In New York, the time to bring a suit for Medical Malpractice is 2.5 years.  Ordinary Negligence is 3 years.  The cause of action accrues at the time the injury occurred, which in this case, is when the man was switched at birth.  Statutory tolls wouldn’t save him either: the tolling period for infancy only extends until you are eighteen years of age, meaning he would have until he was 21 to bring a Negligence action in New York.

But what about the fact that he didn’t find out until he was 60?  Still no dice under New York Law.  Discovery-based accruals generally only apply to toxic torts, fraud, and med mal cases involving surgical instruments being left inside the body after surgery.  Equitable Estoppel and Equitable Tolling generally only apply where the Defendant acts in bad faith to conceal the Plaintiff’s cause of action, or cause him to delay bringing a law suit.  Neither of those appear to be the case here.  While it’s true that Equitable Tolling has been applied despite the absence of bad faith, it is generally only applied to federal causes of action, because it is a federal common law doctrine.  So you’d have a long row to hoe to convince a state judge that Equitable Tolling should be applied here.

Nonetheless, it is an extraordinary case, and courts sometimes find creative ways to get a particular legal result where manifest injustice would otherwise occur.  It’s difficult to see a clear path forward here, however.  I guess the Plaintiff here was at least lucky to be born in Japan, where presumably their Statutes of Limitation work differently.

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