Broward Circuit Judge Nicholas Lopane gave the green light to a class-action lawsuit that alleges Nova Southeastern University's post-graduate orthodontic clinic risked patients contracting blood borne diseases, like HIV and hepatitis B and C, by failing to properly sterilize equipment.

Davie resident TIffany Aguero, the mother of one patient, sued for negligence in December 2018 after she and about 1,100 others received a letter from NSU saying that they or their children might have been affected by a breach in protocol at one clinic.

“We discovered there was an inconsistency in the prescribed sterilization protocols,” the letter said. “Our records indicate that you were one of the patients who may have been exposed to this deviation in protocol.”

Fort Lauderdale lawyer Jay Cohen of Cohen, Blostein & Ayala represents Anguero and more than 25 others who got the letter, and who he says suffered the emotional distress of wondering if they had contracted a disease.

So far, none of Cohen's clients — most of whom are children — have tested positive for a disease. But in his view, the breach is unacceptable.

“When a parent gets this letter and is advised that their child may have contracted such a horrible virus, it was devastating to them,” Cohen said. “Most of them when I met with them were still exhibiting the anxiety and distress over what this could have meant to their children.”

According to Cohen, many of his clients are worried about future medical and dental visits.

NSU and its lawyer, Evan Marowitz of Cole, Scott & Kissane in Fort Lauderdale, declined to comment on the case. But the university had moved to dismiss, arguing that the negligence case should have instead been brought under the medical malpractice umbrella.

“The plaintiff notably does not call the claims what they are under Florida law — claims for dental malpractice,” NSU's motion said.

According to Cohen, if the defense had succeeded, the plaintiffs would have faced a higher bar and their damages would have been capped.

Properly sterilizing equipment requires an autoclave — a strong heated container used to hold chemical reactions, high pressure and soaring temperatures — which can sterilize objects with steam. Without that process, patients risk being introduced to deadly viruses lingering on equipment. 

Cohen alleges that some of the students and graduate dentists, hygienists and orthodontists were instead disinfecting equipment that had potentially contacted saliva, gums and blood — a violation of basic procedure.

“When you go into an operation in an operating room, they're not wiping down the equipment being used on the next patient,” Cohen said. “They have new equipment that completely meets all the standards for sterilization before use.”

Read the full complaint:

Cohen said he suspects the students and graduates might have been spread too thin, lacking the proper equipment to ensure proper sterilization procedures while rushing to meet patient demand and pressure from management.

The lawsuit also displays an internal letter from NSU to students, saying that “students are having difficulty sterilizing their handpieces when they run late during the morning clinic session.” The letter goes on to tell students they'll be required to buy a second handpiece for $650 to use while their first is being sterilized, and a $100 bur block for storing equipment.

Now that Cohen has the go-ahead, he said he'll investigate how long NSU waited before sending the letters, how it has dealt with inspections and recommendations for sterilization and other procedures, and whether the breach was limited to the orthodontic clinic — one of several clinics NSU operates.

Cohen handled a similar class action against Broward General Medical Center, alleging that a nurse in a cardiac stress lab had reused single-use equipment. That litigation settled for $14 million, so Cohen aims to seek a similar amount in damages in this case.

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