Philadelphia couple alleging malpractice in daughter's birth want to discontinue suit

By Nicholas Malfitano | Sep 29, 2017

Joseph Marano  

PHILADELPHIA – A Philadelphia couple whose minor daughter suffered birth defects allegedly as a result of medical malpractice has asked to discontinue their case against the physician and hospital system involved.

On Oct. 14, Joseph Marano filed a motion to discontinue a minor’s action without prejudice, in Gary and Kathleen Mertz’s litigation filed against Aria Health System, on behalf of their daughter. The motion was filed in a related case, Mertz Et.Al v. Aria Health System (Case 121202886), and also seeks to be applied to the separate action, Mertz Et.Al v. Dzurinko.

Marano said representation information had been uncovered “that would make proceeding difficult," information the attorney said could be provided to the Court in an in-camera hearing, if need be.

On Oct. 21, defense counsel Cynthia L. Brennan made a motion in response to such a move. Brennan said the motion to discontinue being filed on the eve of trial, which was due to start Nov. 30 and after much discovery had been conducted, should be dismissed with prejudice. Brennan referred to Marano’s explanation for the motion to discontinue as “obscure” and “insufficient."

Philadelphia County Court of Common Pleas Judge Jacqueline F. Allen issued an order on Oct. 22 setting a hearing for the defendants to demonstrate why the aforementioned relief should not be granted. A hearing in this matter was set for Wednesday in Court chambers, at Philadelphia City Hall.

The minor plaintiff was born Nov. 19, 1999, at Frankford Hospital’s Torresdale campus. Dzurinko, an OB/GYN professional, was Kathleen Mertz’s doctor during her birth hospital stay.

Kathleen was admitted to the hospital on Nov. 6, 1999, at 23 weeks pregnant, and was diagnosed with possible abruption and ordered to remain in the hospital until three days had passed without her suffering any blood loss.

Five days into Kathleen’s 24th week of pregnancy, she was noted to have partial abruption, anemia and premature labor, the suit says.

Despite test results showing her baby was in breech, the suit says Dzurinko improperly discharged Kathleen from the hospital on Nov. 18, 1999, with antibiotic for a urinary tract infection. An exam the next day showed Kathleen as four centimeters dilated, and her daughter was then delivered, the suit says.

Her daughter was born blind, with “profound neurological impairments and spastic quadriparesis.” According to the suit, she suffered “mental retardation, oxygen deprivation, periventricular leukomalacia, reduced IQ, speech and visual impairment, cerebral palsy, pulmonic stenosis, developmental delays and cognitive impairments," among other injuries.

The plaintiffs’ suit argues Dzurinko’s improper discharge of Kathleen from the hospital, failure to perform a Caesarean section in a timely manner, or properly recognize and diagnose Kathleen’s condition caused her daughter's birth defects.

The plaintiffs are seeking judgment, jointly and severally, in excess of arbitration limits, plus costs, interest and attorney’s fees in this case – plus equal damages against Dzurinko for negligence.

The plaintiffs are represented by Joseph Marano of Layser & Freiwald, in Philadelphia.

The defendant is represented by Benjamin A. Post and Cynthia L. Brennan of Post & Post in Berwyn, plus William L. Banton Jr. of Marshall Dennehey Warner Coleman & Goggin, in Philadelphia.

Philadelphia County Court of Common Pleas case 140305286

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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