On October 11, 2019, Judge Bridget Stecher of the New Jersey Superior Court granted a contested class certification motion in a case seeking medical monitoring and a corrective notice for approximately 400 New Jersey residents who previously received a written notice from the HealthPlus Surgical Center in Saddle Brook, notifying them they had possibly been exposed to HIV and/or Hepatitis at the surgical center. The Court also appointed Stephen DeNittis and Joseph Osefchen of DeNittis Osefchen Prince in Marlton as class counsel. At the same hearing, the Court denied a motion brought by the surgical center to stay the case and transfer the matter to the New Jersey Department of Health, ruling that the Department of Health had indicated it had no issue with the Court deciding all issues in the case. The Court also granted a motion to hold an emergent evidentiary hearing in December of 2019.
The class certification ruling comes 13 months after the New Jersey Department of Health shut down HealthPlus over what inspectors said were major lapses in sanitation at the facility. The inspectors found that surgical instruments used at the facility had debris in the hinges, and were rusty and discolored, and that surgical staff failed to cover their facial hair during operations. The inspectors also found an outdated infection control plan and unacceptable sterilization practices. In December of 2018, HealthPlus sent letters to persons treated at the surgical center between January and September 2018, instructing them to have a single blood test for hepatitis B, hepatitis C and HIV immediately.
The class complaint contends that the single immediate blood test offered by HealthPlus to the class was a medically and legally inadequate response to the danger described in the HealthPlus notice. Specifically, the lawsuit contends that, because the diseases in question have an incubation period of up to six months, a single blood test conducted within that period may not definitely determine whether or not the recipient is infected. The litigation seeks to establish a medical monitoring program under which class members would receive at least one additional blood test, conducted outside the six month incubation window, at the defendant’s expense. The complaint also seeks to have a court-approved form of corrective notice sent to the class, notifying them that testing within a period less than six months after possible exposure cannot definitively determine whether they were infected and correcting certain other allegedly misleading statements in the notice previously sent out by Health Plus.
The suit claims medical monitoring is warranted under the New Jersey Supreme Court’s 1987 ruling in Ayers v. Jackson Township, which first recognized a cause of action for medical monitoring in New Jersey. In that case, the court affirmed a jury verdict awarding medical surveillance relief to Jackson residents exposed to carcinogens in their drinking water. Declaring the relief consistent with the early detection of disease, the court in that case eliminated the need for proof of current injury.