NSU to pay $5.5 million to settle class-action suit over unsterile dental tools used on hundreds of patients, mostly children

From the NSU dental college’s orthodontics website.

By Dan Christensen,

Nova Southeastern University will pay $5.5 million to settle a class-action lawsuit that arose after NSU disclosed that student dentists training in orthodontics failed to properly sterilize equipment used on patients, according to a Broward judge’s final order.

The settlement includes payments of $3,000 each to 1,152 class members – mostly children –  totaling nearly $3.5 million. Another 29 plaintiffs consolidated from other cases will receive $2,000 apiece, or $58,000. The lead plaintiff, Tiffany Aguero, whose young daughter was a patient at NSU’s Post-Graduate Orthodontic Clinic, will receive $12,000.

Attorney Jay Cohen and his Fort Lauderdale law firm, Cohen, Blostein & Ayala, will collect $1.8 million in attorney’s fees, plus $30,000 in costs. Another $100,000 was set aside to pay the costs of administering a settlement fund that will oversee the various payouts, under the deal approved by Broward Circuit Judge Nicholas Lopane on March 1.

In an interview Tuesday, Cohen placed the blame for what happened squarely on the university because too much pressure was placed on the post-graduate dental students.

“This happened because they were booking multiple procedures at the orthodontic clinic and the students were not capable or able to adequately sterilize for the next patients. They were sanitizing, not sterilizing,” he said. “They knew about it for many, many months before they ever disclosed it to the patients.”

No admissions by NSU

The settlement includes no admission of wrongdoing by NSU. The judge’s order says his ruling “shall not be construed or used as an admission, concession, declaration or finding by or against the parties that their claims or defenses lack merit.”

According to the class action complaint filed by Cohen in December 2018, the dentist residents at the clinic on the university’s main campus in Davie did not follow Centers for Disease Control (CDC) Guidelines for Infection Control requiring heat sterilization of dental/orthodontic equipment. Instead, between July 2015 and February 2018 they wiped down those instruments with a surface disinfectant.

Attorney Jay Cohen

That failure exposed patients who underwent various dental and orthopedic procedures, including the placement or removal of braces, to viral infections and disease, the complaint said. None of the exposed patients became ill.

“Nevertheless, the named plaintiffs and the members of the settlement class claim to have suffered emotional distress” between the time they received the notification letter and the time they received their negative test results, the complaint says.

Patients notified

Court papers say that when NSU learned of the breach of sterilization protocol, it consulted with epidemiology and infection specialists from the CDC and the Florida Department of Health. Nova concluded the risk of infection was “extremely low,’’ but ultimately decided to notify all patients who might be in danger “to seek testing for certain viruses they may have been exposed to” as “recommended by the CDC.”

NSU’s attorneys, Evan Marowitz of Miami’s Cole Scott & Kissane and James L. White III of Bobo Ciotoli White & Russell in Palm Beach Gardens, sought to have the case dismissed in 2019, arguing the class plaintiffs received “qualified care.” In the months that followed, records were obtained and video depositions were taken from a number of NSU administrators and employees, including President and CEO George Hanbury.

Court papers were filed in late February seeking judicial approval of the settlement, noting that both sides wanted to avoid the risks of trial. “Nova was facing up to 1,152 damage trials, the mere cost of which to defend, would, in and of itself, be extraordinarily high,” the complaint said. The class faced a possible adverse legal ruling on an issue that “could defeat their claims entirely or defeat the grounds for class certification.”

Judge Lopane agreed the deal was fair.

NSU spokesman Joe Donzelli declined to comment. “The university does not provide specific comments on any pending, current or past litigation, and is pleased that this case concluded without undue litigation,” he said.

Plaintiff’s attorney Cohen said the mistakes should not have occurred.

“This constitutes a lesson that you make sure you not only have compliance [of CDC requirements] but that you are monitoring compliance. That is so important in a healthcare setting,” he said. “Something like this should never happen.”

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