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An Essex County judge granted class certification on behalf of 3,700 former surgery center patients instructed to get tested for HIV and hepatitis after inspectors found unsanitary conditions there.

Superior Court Judge Bridget Stecher granted the motion for class certification Oct. 11 on behalf of all New Jersey residents instructed by the outpatient HealthPlus Surgery Center in Saddle Brook to get tested for HIV, hepatitis B and hepatitis C. Stecher also appointed Stephen DeNittis and Joseph Osefchen of DeNittis Osefchen Prince in Marlton as class counsel.

The class certification ruling comes 13 months after the state Department of Health shut down HealthPlus over what inspectors said were major lapses in sanitation at the facility. The department ordered the facility closed on Sept. 7, 2018, and allowed it to reopen three weeks later.

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 The inspectors also found poor drug storage methods, an outdated infection control plan and unacceptable sterilization practices. HealthPlus sent letters to 3,778 people treated between January and September 2018, instructing them to have blood tests for hepatitis B, hepatitis C and HIV.

The litigation seeks medical monitoring of the facility's former patients. The surgery center agreed after the shutdown to pay for only a single blood test for each patient but that measure is inadequate considering the long incubation period for HIV and hepatitis, the suit claims. The suit also seeks preventive medical treatment before class members receive a positive test result.

The judge has scheduled an evidentiary hearing for Nov. 13 concerning the plaintiffs' request for an injunction regulating the defendant's communications with class members regarding their potential exposure to disease.

The ruling follows the defendant's removal of the case to U.S. District Court based on application of the Class Action Fairness Act in January 2019 and a remand to state court in June. U.S. District Judge William Martini ordered the case back to state court based on a finding of minimal diversity between the parties, since the plaintiffs' pleadings limited the class to New Jersey residents, even though some HealthPlus patients who received notices lived outside the state.

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 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.

A complaint by DeNittis and Osefchen seeks medical monitoring, education and warnings and preventive medical treatment, and brought claims for negligence and medical malpractice. Other plaintiffs who sued the surgical center brought claims for emotional distress and claims on behalf of spouses and partners of persons who underwent procedures at the center.

After the state ordered HealthPlus shut down, the center improved its infection control procedures, hired additional staff and supervised the cleaning and repair of surgical instruments by an outside vendor.

DeNittis and Osefchen did not respond to calls about the case.

The lawyer for HealthPlus, Keith Roberts of Brach Eichler in Roseland, also did not return a call about the case.