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Class actions for needle sticks are still alive and well.

VIRTUALLY ALL NURSES ARE SUBJECTED TO NEEDLE STICKS AT ONE TIME OR ANOTHER. However, to the extent that there are needles and syringes available which can minimize the risks of needle sticks, if not outright eliminate the risks, are manufacturers of needles and syringes who fail to employ the latest available techniques to ensure maximum reduction of risk vulnerable to class actions by nurses as well as all other healthcare professionals who might be subjected to such risks? That was the principal issue with which the courts were confronted in this unusual Ohio case in which a Nurse brought a product liability against the manufacturer of the syringe needles. The nurse moved to have the suit certified as a Class Action.

VICKIE GRANT WAS INJURED WHEN SHE SUFFERED AN ACCIDENTAL NEEDLE STICK WHILE USING A DISPOSABLE, FIXED, EXPOSED, HOLLOW-BORE NEEDLE SYRINGE. The needle was manufactured by Becton Dickinson & Co. (Becton), a manufacturer and marketer of a wide variety of hollow-needle products used in health care, specimen collection, blood collection, transfusion, and intravenous therapy. Nurse Grant brought suit in the Franklin County Court of Common Pleas of Ohio seeking to represent a class composed of health care workers in Ohio similarly injured by comparable Becton standard ("non-safety") syringes, blood collection devices and other needle devices. The suit alleged that such non-safety devices are defectively designed, resulting in unnecessary secondary needle stick injuries to thousands of Ohio health care workers, and created an unreasonable risk of harm that easily could have been prevented by the use of alternative, safer designs incorporating post-use protection for exposed needles. Nurse Grant's complaint sought economic damages in the form of reimbursement for the costs of testing for exposure to HIV, hepatitis, and other blood -borne pathogens. Her complaint also prayed for punitive damages. Nurse Grant also presented extensive evidence regarding the availability of alternative safety designs, including recently introduced hollow-bore needle appliances marketed by Becton that incorporated safety features to reduce the risk of secondary needle sticks. The trial court granted Nurse Grant's motion to certify a class to proceed with the suit. Becton appealed.

THE COURT OF APPEALS OF OHIO DISAGREED WITH THE TRIAL COURT'S FINDING OF COMMONALITY. The court held, inter alia, that the trial court did not err in its application and evaluation of most of the factors for certifying a class action. However, the court ultimately disagreed with the trial court's conclusion that the requirement of commonality was met by a class that included persons injured while using "all" varieties of Becton hollow-bore needle devices. Accordingly, the court reversed the trial court's order certifying the class and remanded the case to the Franklin County Court of Common Pleas for a determination, within the trial court's discretion, as to whether the class could be separated into appropriate "subclasses," and thus, limiting the class in question to a class of persons using devices comparable to that which injured Nurse Grant, or, if not, whether the suit should be dismissed

THE PARTY PURSUING CERTIFICATION OF A CLASS BEARS THE BURDEN OF SHOWING, BY A PREPONDERANCE OF THE EVIDENCE, THAT ALL PREREQUISITES FOR CERTIFICATION OF A CLASS ARE PRESENT. The court outlined the seven prerequisites for a class as follows: There must be (1) an identifiable class capable of unambiguous definition; (2) the named representative must be a member of the class; (3) the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact which are common to the class; (5) the claims or defenses of the class representatives must be typical of the claims or defenses of the class; (6) the class representatives must fairly and adequately protect the interest of the class; and (7) the action must meet one or more of three requirements under Ohio's Rules of Civil Procedure. The court agreed that the class as defined by the trial court was sufficiently definite and identifiable to maintain a class action. Some factual screening is inevitable in determining membership in any plaintiff class. The court concluded that the class, as defined, was not vague, ambiguous or amorphous and thus there was no abuse of discretion by the trial court. The trial court was to consider whether appropriate "subclasses" were possible and, if not, dismiss the case. Grant v Becton Dickinson & Co., 2003 WL 21267787 N.E.2d -OH

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I. firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.
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Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Geographic Code:1U3OH
Date:Jun 1, 2003
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