Date: Mon, 25 Nov 2002

Subject: State Supreme Court overturns ruling on day care death

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State Supreme Court overturns ruling on day care death --------------------

By NOREEN GILLESPIE

Associated Press Writer

November 25, 2002, 6:39 PM EST

HARTFORD, Conn. -- The state Supreme Court on Monday reversed a jury verdict and found a Bolton day care provider could not be held liable for the sudden death of a baby who was sleeping on her stomach.

Barbara Horne had been ordered to pay $800,000 in the death of 10-week-old Shelby LePage, who died of Sudden Infant Death Syndrome while taking a nap at Barbara's Child Care Center on Dec. 8, 1998.

Mary LePage, the baby's mother, had instructed Horne to allow the child to sleep only in her portable car seat or in a baby swing at the child care center. It was not clear why the family gave that instruction. A message was left Monday with the family.

The court, in a 5-0 decision, said jurors did not have enough information to decide if the day care provider did something wrong. It said attorneys for the plaintiff needed to call an additional expert familiar with the day care industry to discuss a reasonable care standard.

"The pertinent question is whether the ordinary person would know that the likelihood of harm from placing an infant in the prone position is statistically significant enough so as to require a reasonable person to take measures to prevent the infant from sleeping prone," Justice Joette Katz wrote.

Gerald Sack, the attorney representing Mary LePage, said he was disappointed.

"It raises the bar very high for a plaintiff to prevail under these circumstances," he said. "But the fact that this case exists might help others to achieve the goal that we were not able to reach."

Sack said he is not planning an appeal, but may approach the legislature with his client about developing regulations for specific standards of care for day care providers.

Experts have not been able to identify a specific cause for SIDS. It caused the death of 2,523 infants in 2000, according to the National Center for Health Statistics.

Some research suggests the risk is decreased when infants sleep on their backs.

The American Academy of Pediatrics issued recommendations in 1994 in a "Back to Sleep" campaign that encouraged parents and caregivers to place infants on their backs.

The decision is encouraging to some day care providers in Connecticut, but many are still anxious about the issues the lawsuit raised, said Lynn Behrmann, a chairwoman at the Connecticut Family Day Care Association.

"It leaves the door open for the next family to come forward and do the same thing," she said. "Just because the first lawsuit didn't win doesn't mean somebody else wouldn't."

Some providers across the state have decided not to take infants below a certain age. Others have parents sign waivers in an attempt to protect them from similar lawsuits, Behrmann said.

The court did not address whether Horne's actions contributed to the child's death. But plaintiffs would likely have to prove that specific actions caused Sudden Infant Death Syndrome in future lawsuits, said Wesley Horton, the attorney representing Horne.

Because the cause of SIDS is not known, that could be difficult, he said.

"This means it's going to be more difficult for plaintiffs to bring these cases," Horton said. "You have to prove something is more likely than not."

Copyright (c) 2002, The Associated Press