National / Social Issues

Infant deaths underscore accountability gaps in Japan's nurseries

by Tomoko Otake

Staff Writer

When Yuki Kai went to pick up her 14-month-old son, Kento, from a nursery in Tokyo after his nap time, she found him dead.

That was on March 11. Since then, Kai has found herself fighting for answers as to why he died, with little help from the nursery or from the state.

Kai, a 39-year-old medical interpreter from Chiba Prefecture, has found it excruciatingly hard to learn what happened.

Kento was a healthy baby with no previous medical history, except for a few food allergy issues.

The nursery in Tokyo’s Chuo Ward is a workplace facility run by a private operator for employees of several companies nearby.

Desperate to find the facts, she went so far as to ask staff to fill out a questionnaire she drew up herself.

But her persistence brought about a hardening in the attitude of the nursery company executives. At one point they told her not to come back any more, referring her to their lawyer instead.

Meanwhile, police investigations and inspections by the Tokyo Metropolitan Government found that Kento had been left to sleep in a room alone, apart from other babies because “he cried.”

He was also left in the risky prone position, lying on his stomach, for two hours and 20 minutes, with nursery staff paying scant attention, raising suspicions that he suffocated.

Kai’s case underscores bigger issues surrounding the nation’s day care facilities. While the administration of Prime Minister Shinzo Abe has made fixing the day-care crunch a top priority and is rapidly increasing the number of spots available for children, it has failed to address the biggest wish for any parent who places their loved ones in the hands of others: that the children are safely cared for.

The reality is, the quality of day care varies greatly and is often poor at not a few facilities that fall outside the government accreditation scheme, including Kento’s nursery.

These unlicensed day care centers — called ninkagai hoikujo — are not subject to stringent quality control, in such criteria as the percentage of licensed staff and the staff-to-children ratio, and have much higher mortality rates than accredited facilities.

According to the Cabinet Office, during five years through the end of March, a total of 82 children died at nurseries, out of which 61 — or nearly three quarters — died at unlicensed facilities. The figures included 33 children who were left asleep in the prone position, 28 of which were at unlicensed facilities.

The figures are astounding given that the number of children enrolled in unlicensed nurseries is only a fraction of the entire nursery enrollment. As of March 2015, fewer than 200,000 children were enrolled in unlicensed nurseries, as opposed to 2.4 million in licensed ones, according to the Health, Labor and Welfare Ministry.

Many parents put their babies in unlicensed schools when they cannot find places at licensed institutions. Competition can be so extreme that some couples reportedly get a divorce, as it is easier for single parents to get their children enrolled.

Those who resort to unlicensed places and lose their babies to accidents are further disadvantaged by the current insurance scheme, said Toko Teramachi, a lawyer versed in child safety issues who is representing Kai.

Kai wants not only an apology from the nursery but also an explanation of what exactly happened to her son, together with steps to prevent similar tragedies in future.

According to Teramachi, the children in licensed nurseries are covered by a “no-fault” accident insurance scheme, a public program run by the education ministry-affiliated Japan Sport Council, while those in unlicensed institutions are excluded.

The no-fault insurance covers all injuries and deaths caused to children when they are in the care of nursery staff, regardless of whether the staff were at fault. When a baby covered by this insurance dies, for example, a lump-sum payment of ¥14 million or ¥28 million is made to the family regardless of the operators’ liability.

On the other hand, many unlicensed institutions join private accident insurance on their own to compensate for deaths or injuries of children under their care.

But such insurance only covers cases in which the cause of death is clearly established and the nursery’s negligence is legally proven, Teramachi said, noting that attempts to determine cause of death can often be stalled because operators tend to not divulge details of accidents for fear of being held liable.

Exasperated parents then have no choice but to take things to court — a costly and drawn-out process that adds to their pain.

Teramachi noted the example of a recent court case involving the death of a 1-year-old girl in Koriyama, Fukushima Prefecture. Rino Tsukui died in January 2010 at an unlicensed day care facility in the city after being left asleep in the prone position. Parents sued the facility for damages, but it took more than six years for them to win a semblance of justice.

Last month, the Supreme Court rejected the appeals by the owners and staff of the nursery, who argued that the baby might have died of sudden infant death syndrome (SIDS), a medically unexplained condition whose definition has recently been called into question.

The top court ordered the defendants to pay some ¥58 million in damages, ruling that the baby suffocated after being placed in an unsafe sleeping environment and that the nursery staff failed to properly monitor the baby even though they were well aware of the risks of suffocation.

“It took six years and six months for the family to get their claims finalized, after having their victory at a district court appealed, then having an appeals court victory appealed again,” Teramachi said. “What kind of system is that? Why is restitution not available until they go all the way to the Supreme Court to get recognition that the death was caused by suffocation? And all this time, similar accidents have been repeated elsewhere.”

Teramachi said the simple solution is to allow all nurseries, licensed or not, to join the JSC insurance. That way, nursery workers in question can volunteer more information about the circumstances of infant deaths without worrying about their legal liability, she said.

The problem is compounded by ambiguities surrounding the SIDS diagnosis. Some experts and parents have long argued that the diagnosis is misused and overused, possibly to cover up deaths resulting from accidental suffocation.

Some scientists believe many deaths classified as “unexplained” are not SIDS after all. As a result of reviews by researchers in the U.S. and thanks to the “Back to Sleep” public health campaign since the 1990s — which instructs caregivers to place babies on their backs — the number of SIDS deaths has fallen to half of what it was two decades ago, the Atlantic magazine reported in June.

In 2009, the U.S. Centers for Disease Control and Prevention launched a case registry to log deaths attributed to SUID, short for Sudden Unexpected Infant Death, a broader category that includes SIDS. The registry is now used in 18 states.

A July 2014 paper by CDC researchers published in the Pediatrics journal outlines the rigorous classification criteria used in the registry, including a flow chart that leads officials through layers of questions — such as where and how the body was found, and whether any factors for suffocation were present — so they can classify sudden infant deaths more accurately.

Such a systematic review should also be adopted in Japan, Kai argues.

In April, the Cabinet Office made it mandatory for municipalities to set up a third-party panel of experts to investigate deaths and serious accidents at nurseries through interviews with family members and nursery staff as well as SIDS experts.

But the measure, implemented through a notice issued by ministries, not legislation, contains no penalty clause for operators that fail to report cases, a Cabinet Office official acknowledged.

Teramachi said these third-party panels should be empowered so they can be more actively involved in death scene investigations, such as by dispatching experts immediately after an incident.

In the absence of such death reviews, families trying to find out why their children died must do the bulk of the investigation themselves, running around and trying to squeeze information from reluctant nursery staff.

That is exactly what Kai has been doing following the death of her son, who was born six years after she and her husband began trying to have a child.

In April, the metropolitan government issued an administrative order to the nursery in Chuo Ward, demanding that its practices be improved.

Tokyo Metropolitan Government official Takahito Tomiyama said the nursery failed to monitor Kento’s condition closely enough, thus violating its guidelines. But after having the nursery submit a report on how it fixed its problems in May, the government took no further action — and it is now business as usual again at the nursery.

“I want them to tell the truth,” Kai said, saying the operator has not properly apologized to the family or explained the facts surrounding Kento’s death. “I can’t get my son back, but at the very least I want to know what happened. Otherwise, I can’t move on.”

Kai and other parents who have lost their children at nurseries have started an online petition, asking that all nurseries to be covered by the state-subsidized no-fault accident insurance. For details, visit goo.gl/jF8Prq