stating expert’s testimony demonstrating increased risk of harm “furnishes a basis for the fact-finder to go further and find that such increased risk of harm was in turn a substantial factor in bringing about the resultant harm”
How later courts described this case
- stating expert’s testimony demonstrating increased risk of harm “furnishes a basis for the fact-finder to go further and find that such increased risk of harm was in turn a substantial factor in bringing about the resultant harm”
Written by the judges who cited it.
The opinion
J-A16044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
KELLY A. VELESARIS & DEMETRIOS : IN THE SUPERIOR COURT OF
C. VELESARIS : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1602 MDA 2022
OLEG LEONTIEV, M.D., LEBANON :
IMAGING ASSOCIATES, P.C., THE :
GOOD SAMARITAN HOSPITAL OF :
LEBANON, PENNSYLVANIA D/B/A :
WELLSPAN GOOD SAMARITAN :
HOSPITAL, AND WELLSPAN HEALTH :
Appeal from the Order Entered October 12, 2022
In the Court of Common Pleas of Lebanon County Civil Division at No(s):
2018-02094
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 15, 2023
In this medical malpractice action, Kelly A. Velesaris and her husband,
Demetrios C. Velesaris (collectively, Appellants) take this appeal from the
order entered in the Lebanon County Court of Common Pleas, granting
summary judgment in favor of Oleg Leontiev, M.D., and Lebanon Imaging
Associates, P.C.1 (collectively, Dr. Leontiev).2 Appellants aver the trial court
____________________________________________
1 Appellants named Lebanon Imaging Associates, P.C. based on a claim of
vicarious liability. See Appellants’ Complaint, 8/9/18, at ¶ 3.
2 Appellants voluntarily sought to enter final judgment in favor of Dr. Leontiev
to pursue the present appeal. See Final Order, 10/12/22, at 1-2.
J-A16044-23
erred in determining that two of their expert witnesses were not qualified and
competent to render opinions on causation. Based on the following, we affirm.
The underlying facts and procedural history are as follows. Kelly had
several “routine bilateral mammogram[s]” performed in 2007, 2008, and
2013 at Tristan Radiology. See Appellants’ Complaint at ¶¶ 13-15. All three
studies “showed heterogeneously dense breast tissue with no evidence of
malignancy.” Id.
On October 25, 2014, she presented to Good Samaritan Hospital for an
annual mammogram screening and Dr. Leontiev was the reviewing physician.3
See Appellants’ Complaint at ¶ 16.
The study was compared to the prior three previous studies
performed at Tristan. The results of this study, as interpreted by
[Dr. Leontiev], revealed “scattered fibroglandular densities” with
“no dominant masses, suspicious microcalcifications or areas of
architectural distortion observed to suggest malignancy. [There
were n]o significant changes when compared to prior studies.” Dr.
Leontiev assessed [Kelly] as Birads[4] Category 1-Negative.”
Id.
Kelly returned to Good Samaritan on October 27, 2015, for her annual
mammogram screening, which was again interpreted by Dr. Leontiev. This
____________________________________________
3 Dr. Leontiev is a board certified radiologist.
See Dr. Leontiev’s Answer and
New Matter, 6/24/19, at ¶ 2. Kelly testified she never met Dr. Leontiev. See
Dr. Leontiev’s Brief in Support of Supplemental Omnibus Motion in Limine,
9/16/22, at Exhibit “B” (Oral Deposition of Kelly A. Velesaris, 9/9/19, at 27).
4 “Birads” is the acronym for “Breast Imaging Reporting & Data System.”
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J-A16044-23
study was compared to the October 25, 2014, and the March 21, 2013,
studies, and the results were substantially similar to the 2014 screening. See
Appellants’ Complaint at ¶ 17.
Kelly next returned to Good Samaritan on November 14, 2016, for a
mammogram screening. This time, Jennifer Kegel, M.D. interpreted the study
and compared it with the five previous studies. She “noted ‘scattered
fibroglandular densities. Focal asymmetry/architectural distortion, upper
quadrant left breast.’ Dr. Kegel assessed [Kelly] as Birads Category 0-
Incomplete, and recommended [she] undergo further imaging and ultrasound
in light of the findings.” Appellants’ Complaint at ¶ 18.
Kelly then went to the Milton S. Hershey Medical Center (Hershey) on
November 17, 2016, for additional diagnostic testing. Appellants’ Complaint
at ¶ 19. “Results of the tests confirmed that a ‘solid mass in the left breast
[was] highly suggestive of malignancy.” Id. Kelly was then “assessed as a
Birads Category 5-Highly Suggestive of Malignancy.” Id. A biopsy of Kelly’s
left breast was taken, “confirming a diagnosis of invasive left breast
carcinoma.” Id. at ¶ 20. “A breast [magnetic resonance imaging (MRI)]
performed on November 23, 2016, at [Hershey] confirmed the presence of
multiple additional suspicious masses, thereby precluding any option of
breast-conserving surgery.” Id. at ¶ 21.
On January 2, 2017, Kelly “underwent a bilateral mastectomy and a left
axillary sentinel lymph node biopsy” at Hershey. Appellants’ Complaint at ¶
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22. “The results of the lymph node biopsy revealed left multifocal invasive
breast carcinoma with ductal and lobular features, and extensive high nuclear
grade ductal carcinoma in-situ, as well as micrometastic carcinoma in sentinel
lymph nodes.” Id. at ¶ 23. Kelly also underwent chemotherapy six weeks
later. See Oral Deposition of Kelly A. Velesaris at 60. Additionally, she
decided to undergo postmastectomy radiation. Id. at 90. Subsequently, she
sought numerous breast reconstruction procedures.5 Post treatment, Kelly
has not been diagnosed with any recurrence of her breast cancer. Id. at 94-
95.
On August 9, 2018, Appellants filed a complaint against Dr. Leontiev,
and other entities,6 alleging that the doctor’s failure to timely detect and report
radiologic mammographic evidence of cancer in Kelly’s left breast based on
____________________________________________
5 Kelly acknowledges she has had five breast revision surgeries. See
Appellants’ Pretrial Statement, 2/28/22, at 1; see also Appellants’ Brief at 6.
Her treating radiation oncologist, Jennifer C. Rosenberg, M.D., stated that
when a patient that has breast reconstruction, they can develop scar tissue
after radiation. See Omnibus Motion in Limine of Defendants, Oleg Keontiev,
M.D. and Lebanon Imaging Associates, P.C., Challenging Expert Evidence,
9/8/22, at Exhibit “A” (Oral Deposition of Jennifer C. Rosenberg, M.D.,
2/21/20, at 32).
6 Appellants also named The Good Samaritan Hospital of Lebanon,
Pennsylvania d/b/a WellSpan Good Samaritan Hospital (Good Samaritan), and
WellSpan Health (WellSpan) as defendants. Good Samaritan and WellSpan
were dismissed from the underlying litigation pursuant to the trial court’s
October 5, 2022. Appellants do not challenge that portion of the trial court’s
order on appeal.
-4-
J-A16044-23
studies he reviewed on October 25, 2014, and October 27, 2015.7 Moreover,
Appellants averred:
27. As a consequence of the delayed diagnosis of left breast
cancer, [Kelly] required more aggressive, invasive treatment
and lost any possibility of pursuing any breast-conserving,
less radical options. The delayed diagnosis also diminished
[Kelly]’s chances of achieving a complete cure.
28. As consequence of the delayed diagnosis of left breast cancer,
[Kelly] sustained permanent and irreversible loss of both
breasts.
Appellants’ Complaint at ¶¶ 27-28 (emphases added).
The parties exchanged numerous pleadings and motions. The matter
was scheduled for trial on October 10, 2022. In their pretrial statement,
Appellants identified two experts — a radiologist expert, Reni S. Butler, M.D.,
and a psychiatrist expert, Howard L. Forman, M.D. — who would testify that
the delayed diagnosis caused the progression of Kelly’s breast cancer, which
necessitated the treatment chosen by Kelly. See Appellant’s Pretrial
Statement at 6 (unpaginated).
Dr. Butler’s report provided, in relevant part:
It is my opinion, to a reasonable degree of medical certainty,
that the standard of care was breached at the time of
interpretation of the 10/25/2014 and 10/27/2015 mammograms,
due to a failure to identify interval development of new or
increasing suspicious findings; a failure to recommend further
evaluation with diagnostic mammography and ultrasound; and a
____________________________________________
7 Appellants originally filed their complaint in the Philadelphia Court of
Common Pleas. The matter was subsequently transferred to the Lebanon
County Court of Common Pleas pursuant to a stipulation by the parties.
-5-
J-A16044-23
failure to perform biopsy for histologic diagnosis. The
misinterpretation of the mammograms from 10/25/2014 and
10/27/2015 fell outside the standards of acceptable professional
practice and resulted in a delay of [Kelly]’s breast cancer
diagnosis.
It is also my opinion, to a reasonable degree of medical
certainty, that had a biopsy been performed after the 10/25/2014
or 10/27/2015 mammograms, [Kelly’s] cancer would have been
diagnosed earlier when she could have been treated less
aggressively with breast conserving surgery. In this case as well
as any other oncologic case, it is a well-accepted medical concept
that the earlier the stage at which a malignancy is diagnosed, the
better the prognosis for treatment and eventual outcome. The
delay in diagnosis of [Kelly’s] invasive breast carcinoma due to
the failure to identify suspicious mammographic findings on
10/25/2014 or 10/27/2015 allowed her cancer to progress, led to
more aggressive surgical treatment, and diminished her chances
of [a] cure.
Dr. Leontiev’s Motion in Limine at Exhibit “B” (Dr. Butler’s Report re Kelly
Velesaris, 5/18/18, at 3-4 (unpaginated)).
Additionally, Dr. Forman’s expert report stated, in part:
[Kelly]’s decision-making throughout the treatment of her breast
cancer was not influenced by any mental illness.
* * *
When [Kelly] was finally diagnosed, her physicians provided her a
menu of treatment options. She chose from that menu. If the
cancer had been diagnosed earlier, it is reasonable to conclude
that menu would not have included as many of the disfiguring and
systemic treatments [Kelly] received.
Dr. Leontiev’s Motion in Limine at Exhibit “C” (Dr. Forman Report re Kelly
Velesaris, 6/7/21, at 8-9).
On September 8, 2022, Dr. Leontiev filed a motion in limine, asserting
Appellants’ proposed experts, Dr. Butler and Dr. Forman, were “not qualified
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J-A16044-23
to present opinions on causation in this matter where the specific care at issue
is based in various disciplines of oncology.” Dr. Leontiev’s Motion in Limine at
7 (capitalization and emphasis omitted). Dr. Leontiev alleged that Dr. Butler’s
curriculum vitae did “not reflect any education, experience or training in
oncology or the assessment and treatment of cancer.” Id. Moreover, Dr.
Leontiev stated Dr. Butler “does not diagnose cancer, recommend treatment
plans, manage treatment plans, coordinate oncological specialties or generally
follow an oncology patient.” Id. Rather, the radiologist “interpret[s] studies
and develop[s] impressions which recorded in reports then utilized by
oncology providers.” Id. Moreover, he stated that while “radiology is a
necessary and integral step in the diagnosing and sizing of cancer, it can only
disclose, at most, the existence of a tumor and sometimes, the size and extent
of the disease.” Id. Dr. Leontiev further asserted:
The issues of causation in this matter relate solely to whether
[Kelly] required more aggressive oncology treatment resulting
from the alleged failure to detect. However, the size of the tumor
alone is insufficient, as explained by each of [Kelly]’s treating
providers, to perform this analysis even though that is the extent
of information that can be offered by a radiologist.
Id. at 7-8.
As for Dr. Forman, Dr. Leontiev alleged that “it is difficult to find two
medical specialties more unrelated to one another than psychiatry and
oncology and there simply does not appear to be any basis for Dr. Forman to
render causation opinions.” Dr. Leontiev’s Motion in Limine at 8. Dr. Leontiev
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J-A16044-23
concluded that “neither of these individuals are qualified to render causation
opinions in this matter.”8 Id. at 9 (footnote omitted).
On October 5, 2022, the trial court entered an order, which addressed
multiple motions, including Dr. Leontiev’s motion in limine regarding
Appellants’ experts. The order stated, in pertinent part:
4. The Omnibus Motion in Limine of [Dr. Leontiev] Challenging
Expert Evidence is GRANTED, in part, and DENIED, in part, as
follows:
(a.) Dr. Reni Butler and Dr. Howard L. Forman are prohibited
from expressing an expert opinion as to causation, i.e.,
whether [Kelly] would have had a more favorable prognosis
for treatment and eventual outcome if the diagnosis of
cancer had been made at the earlier date(s) suggested by
the evidence adduced at trial.
(b.) Dr. Forman is prohibited from expressing an opinion as
to whether any mental illness interfered with the decision-
making process of [Kelly] regarding her cancer treatment.
Order, 10/5/22, at 3.
Upon receipt of the court’s order, Appellants’ counsel “notified the [trial
c]ourt that they would not be able to make out a prima facie case of negligence
____________________________________________
8 Dr. Leontiev also made the following comment:
Dr. Leontiev is not suggesting that Dr. Forman is unqualified to
render a causation opinion relating to any alleged emotion injuries
or disorders resulting from the alleged delay to detect. However,
this issue is separate and distinct from the issue of whether the
alleged delay to detect require more aggressive treatment or
actually resulted in harm to [Kelly].
Dr. Leontiev’s Motion in Limine at 9 n.1.
-8-
J-A16044-23
due to [its] ruling on the Omnibus Motion in Limine.” Trial Ct. Op., 12/23/22,
at 4. Consequently, the court entered a final order on October 12, 2022,
which granted summary judgment in favor of Dr. Leontiev and directed the
prothonotary to enter final judgment in this matter. See Final Order,
10/12/22, at 1-2. Appellants filed a timely notice of appeal.9
Appellants present the following issues for review:
A. Whether [Appellants]’ expert, Dr. Reni Butler, is qualified and
competent to render opinions regarding causation[?]
B. Whether [Appellants]’ expert, Dr. Howard Forman, is qualified
and competent to render opinions regarding causation[?]
Appellants’ Brief at 5.
Because both of Appellants’ claims concern the court’s grant of summary
judgment in favor of Dr. Leontiev, which stemmed from the court’s grant of
Dr. Leontiev’s motion in limine on the basis that Appellants were precluded
from offering expert opinions regarding medical causation and an increased
risk of harm,10 we are guided by the following standards and principles.
In reviewing a challenge to the entry of summary judgment, we may
disturb the trial court’s order “only where it is established that the court
____________________________________________
9 Appellants complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. See Appellants’ Concise
Statement of Errors Complained of on Appeal, 11/14/22, at 1-2. The trial
court issued a Pa.R.A.P. 1925(a) on December 23, 2022.
10 See Final Order, 10/12/22, at 1.
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J-A16044-23
committed an error of law or abused its discretion. As with all questions of
law, our review is plenary.” Pass v. Palmiero Auto. of Butler, Inc., 229
A.3d 1, 5 (Pa. Super. 2020) (citation omitted).11
Moreover, our standard of review of a ruling on a motion in limine is
well-settled:
A motion in limine is used before trial to obtain a ruling on the
admissibility of evidence. It gives the trial judge the opportunity
to weigh potentially prejudicial and harmful evidence before the
trial occurs, thus preventing the evidence from ever reaching the
jury. A trial court's decision to grant or deny a motion in limine is
subject to an evidentiary abuse of discretion standard of review.
Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (en banc)
(citations & quotation marks omitted).
When we review a ruling on the admission or exclusion of
evidence, including the testimony of an expert witness, our
standard is well-established and very narrow. These matters are
within the sound discretion of the trial court, and we may reverse
____________________________________________
11 Furthermore, we note Pennsylvania Rule of Civil Procedure 1035.2 provides:
that where there is no genuine issue of material fact and the
moving party is entitled to relief as a matter of law, summary
judgment may be entered. Where the nonmoving party bears the
burden of proof on an issue, he may not merely rely on his
pleadings or answers in order to survive summary judgment.
Failure of a non-moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of
proof establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will review the record in the light
most favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Pass, 229 A.3d at 5 (citation omitted).
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J-A16044-23
only upon a showing of abuse of discretion or error of law. An
abuse of discretion may not be found merely because an appellate
court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support so as to be clearly erroneous. In
addition, [t]o constitute reversible error, an evidentiary ruling
must not only be erroneous, but also harmful or prejudicial to the
complaining party.
Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super. 2006) (citations
& quotation marks omitted).
Pursuant to Pennsylvania Rule of Evidence 702:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
field.
Pa.R.E. 702(a)-(c).
The Medical Care Availability and Reduction of Error Act, 40 P.S. §
1303.101 et seq. (MCARE), sets forth additional requirements for expert
testimony in medical professional liability actions. Specifically, MCARE
provides, in relevant part:
(a) GENERAL RULE. — No person shall be competent to offer an
expert medical opinion in a medical professional liability action
against a physician unless that person possesses sufficient
education, training, knowledge and experience to provide
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J-A16044-23
credible, competent testimony and fulfills the additional
qualifications set forth in this section as applicable.
(b) MEDICAL TESTIMONY.— An expert testifying on a medical
matter, including the standard of care, risks and alternatives,
causation and the nature and extent of the injury, must meet the
following qualifications:
(1) Possess an unrestricted physician’s license to practice
medicine in any state or the District of Columbia.
(2) Be engaged in or retired within the previous five years
from active clinical practice or teaching.
Provided, however, the court may waive the requirements of this
subsection for an expert on a matter other than the standard of
care if the court determines that the expert is otherwise
competent to testify about medical or scientific issues by virtue of
education, training or experience.
40 P.S. § 1303.512(a)-(b).
To prevail in any negligence action, the plaintiff must
establish the following elements: the defendant owed him or her
a duty, the defendant breached the duty, the plaintiff suffered
actual harm, and a causal relationship existed between the breach
of duty and the harm. When the alleged negligence is rooted in
professional malpractice, the determination of whether there was
a breach of duty comprises two steps: first, a determination of the
relevant standard of care, and second, a determination of whether
the defendant’s conduct met that standard. Furthermore, to
establish the causation element in a professional malpractice
action, the plaintiff must show that the defendant’s failure
to exercise the proper standard of care caused the
plaintiff’s injury. Expert testimony is generally required in
a medical malpractice action to establish several of elements: the
proper standard of care, the defendant’s failure to exercise that
standard of care, and the causal relationship between the
failure to exercise the standard of care and the plaintiff’s
injury.
Freed, 910 A.2d at 72-73 (citations omitted; emphases added). “[M]edical
opinion need only demonstrate, with a reasonable degree of medical certainty,
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that a defendant’s conduct increased the risk that the harm sustained by
plaintiff would occur.” Gradel v. Inouye, 421 A.2d 674, 679 (Pa. 1980).12
Lastly, we note:
In Hamil v. Bashline, our Supreme Court adopted the
relaxed “increased-risk-of-harm” standard for use in certain
medical malpractice claims. 392 A.2d 1280, 1288 (Pa. 1978). In
adopting this principle, the Hamil Court reasoned:
In light of our interpretation of [subs]ection 323(a) [of
Restatement of Torts 2d,13] it follows that where medical
causation is a factor in a case coming within that Section, it
____________________________________________
12 Furthermore, it merits mention:
[A]lthough it is preferable that the expert be in the same specialty
as the defendant, that is not what the law requires in every case.
Rather, “[t]he ‘same subspecialty’ ideal contained in [the MCARE
Act] includes an express caveat, reflecting the Legislature’s
decision to afford the trial court discretion to admit testimony from
a doctor with expertise in another specialty that ‘has a similar
standard of care for the specific care at issue.’”
Vicari v. Spiegel, 936 A.2d 503, 513-14 (Pa. Super. 2007) (citations &
footnote omitted; emphasis in original).
13 Subsection 323 provides, in part:
Negligent Performance of Undertaking to Render Services
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of the other's person or things, is subject to liability
to the other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such
harm . . . .
Restatement (Second) of Torts § 323(a).
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J-A16044-23
is not necessary that the plaintiff introduce medical evidence
in addition to that already adduced to prove defendant’s
conduct increased the risk of harm — to establish that the
negligence asserted resulted in plaintiff’s injury. Rather,
once the jury is apprised of the likelihood that defendant’s
conduct resulted in plaintiff’s harm, [subsection 323(a)]
leaves to the jury, and not the medical expert, the task of
balancing probabilities.
Hamil, 392 A.2d at 1288. Subsequently, our high court
explained:
An example of this type of case is a failure of a physician to
timely diagnose breast cancer. Although timely detection of
breast cancer may well reduce the likelihood that the patient
will have a terminal result, even with timely detection and
optimal treatment, a certain percentage of patients
unfortunately will succumb to the disease. This statistical
factor, however, does not preclude a plaintiff from prevailing
in a lawsuit. Rather, once there is testimony that there was
a failure to detect the cancer in a timely fashion, and such
failure increased the risk that the woman would have either
a shortened life expectancy or suffered harm, then it is a
question for the jury whether they believe, by a
preponderance of the evidence, that the acts or omissions
of the physician were a substantial factor in bringing about
the harm. See Jones v. Montefiore Hosp., 431 A.2d 920
(Pa. 1981).
Mitzelfelt, 584 A.2d at 892; see Smith v. Grab, 705 A.2d 894,
899 (Pa. Super. 1997) (stating expert’s testimony demonstrating
increased risk of harm “furnishes a basis for the fact-finder to go
further and find that such increased risk of harm was in turn a
substantial factor in bringing about the resultant harm”) (quoting
Hamil, supra).
K.H. v. Kumar, 122 A.3d 1080, 1104 (Pa. Super. 2015) (footnotes omitted).14
____________________________________________
14 We acknowledge that we are not concerned with a jury based on the
procedural posture of the case, but we do find the case law discussed K.H.
helpful in our review.
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In their first argument, Appellants complain the court erred in not
permitting Dr. Butler “to testify as an expert as to increased risk of harm in
that her credentials and experience reasonably and rationally envelop this
issue.” Appellants’ Brief at 16. Moreover, they state:
Not only the radiologic detection of a tumor or mass, but also its
growth and potential negative impact if it goes undiscovered, are
intertwined and often subject to a multi-disciplinary approach in
diagnosis and treatment. Dr. Butler’s extensive experience and
knowledge of each of these aspects is well within her purview and
an appropriate subject for her testimony.
Id. In support of their argument, they rely on two cases — Tong-
Sommerford v. Abington Memorial Hospital, 190 A.3d 631 (Pa. Super.
2018), and McFeeley v. Shah, 226 A.3d 582 (Pa. Super. 2020).
Additionally, Appellants contend that the trial court ignored “an excerpt
from Dr. Butler’s report which relates directly to evidence of increased risk of
harm from a radiologic perspective.” Appellants’ Brief at 20. They cite to the
following:
Careful side-by-side comparison with prior studies, a standard
practice in mammographic interpretation, is essential for the early
diagnosis of breast cancer. It is the goal of every reasonable and
well-trained radiologist to detect new potentially significant
findings on mammography at the smallest size at which they can
be perceived. When such findings are allowed to grow, the benefit
of screening mammography in reducing breast cancer mortality is
diminished.
Id. (quotation marks omitted). Appellants maintain:
This one paragraph demonstrates why early detection of
suspicious findings leads to a better outcome. They go hand-in-
hand. Thus, the failure of the radiologist to detect a tumor or
mass in its early stages, by normal progression, gives an increase
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risk of harm to the patient. This passage authored by Dr. Butler
constitutes sufficient evidence that [Dr. Leontiev’s] negligence in
failing to detect a mass at its earliest stages naturally gave rise to
an increased the risk of harm to [Kelly] from a radiologic or
mammographic standpoint, about which Dr. Butler is certainly
qualified to opine.
Id. at 20-21 (emphasis in original).
Here, the trial court opined the following:
[Appellants] countered [Dr. Leontiev’s motion in limine argument]
that Dr. Butler was qualified to render an opinion on causation by
virtue of her education, training and experience in the detection
of breast cancer and the effects of delayed diagnosis and as a
result of her active engagement in the full-time teaching of
medicine. [Appellants] pointed to Dr. Butler’s Curriculum Vitae
which revealed that she is an Associate Professor in Diagnostic
Radiology in the Breast Imaging Section at Yale University and
Yale New Haven Hospital. She is also involved with a multi-
disciplinary task group at the Smilow Breast Cancer Center. From
2013 through 2016, she was the Yale Site Principal Investigator
and National Co-Principal Investigator for a clinical trial called
Pivotal Study of Imaging with Opto-acoustics to Diagnose Breast
Masses Detected by Mammography and/or Clinical Findings.
[Appellants] point out that Dr. Butler has also co-authored a
number of publications pertaining to breast imaging and that she
also has participated in various presentations and lecturers
regarding breast imaging and treatment. [Appellants] argued that
her 24 years of experience working as part of a multi-disciplinary
team of breast cancer specialists, as well as her training,
education and experience in mammography, qualifies her to
recognize evidence of breast cancer and to evaluate the effects of
a delayed diagnosis of breast cancer in general. [Appellants]
argued that Dr. Butler’s background qualified her to render an
opinion on causation under Pennsylvania’s liberal standards for
the qualification of an expert.
[Appellants] claimed that [Kelly], at age 42, was deprived
the chance at breast-conserving treatment due to the failure to
diagnose the cancer, and subsequently underwent a bilateral
mastectomy and, to date, five breast revision surgeries. Once the
cancer was detected, [Kelly]’s treatment was determined after
consultation with oncologists and that treatment plan was
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managed and followed by oncologists. After reviewing Dr. Butler’s
Curriculum Vitae and her deposition, we agreed with [Dr.
Leontiev] that, although Dr. Butler was certainly qualified to
render an expert opinion regarding the detection and
progression of [Kelly]’s breast cancer, she was simply not
qualified to provide an opinion on the management and
treatment of the breast cancer and whether the delayed
detection impacted [Kelly]’s prognosis or the treatment
options available to [Kelly].
Our review of Dr. Butler’s Curriculum Vitae reveals that she
does have an impressive background in her field of radiology,
especially with regard to the detection of breast cancer. She has
won awards for teaching diagnostic radiology, attains membership
in various radiology/imaging organizations, has been published on
topics of breast imaging, and has been involved in lectures on
breast imaging. However, there is little information to
suggest that her experience has extended to knowledge
and training on the effect a delayed diagnosis has on the
severity of a patient’s breast cancer and/or the necessity
of a more aggressive treatment once the cancer has been
detected.
[Appellants] have provided Dr. Butler’s Affidavit which was
attached to [Appellants’] Brief in opposition to the Omnibus Motion
in Limine. In the Affidavit, Dr. Butler affirms her involvement and
vast experience in the field of radiology with emphasis on breast
imaging. In addition, Dr. Butler states:
9. I have 24 years of experience working with a multi
disciplinary team of breast cancer specialists. As part of my
training, education and experience in mammography, I am
qualified to recognize evidence of breast cancer on
mammography and to evaluate the effects of a
delayed diagnosis of breast cancer in general terms.
Dr. Butler’s Curriculum Vitae describes her participation in the
multi disciplinary team as follows:
Ultimate Opinions in Medicine Panelist – national multi-
disciplinary breast cancer expert opinion group formed to
provide expert-level education and improve cancer care in
the medical community at-large through virtual Tumor
Board-like reviews of anonymized cases.
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While we acknowledge Dr. Butler’s inclusion in a team of
specialists who deal with cancer treatment, there is no
indication of what role she has played on the multi-
disciplinary team beyond the field of imaging, whether she
is involved in assessing treatment options for a patient,
and if so, what training and experience she relies upon in
order to make such assessments. Likewise, there is no
suggestion that once Dr. Butler determines the presence of
indicators of breast cancer, she is involved in
recommendations and/or management of specific
treatment plans or with following through with a patient’s
cancer treatment. We believe the circumstances of this case
require that such information be provided by an oncologist.
Moreover, it was [Appellants’] burden to prove that the delay in
detection impacted [Kelly]’s condition and/or course of treatment.
We do not believe that Dr. Butler’s opinion, even if admitted at
trial, would have established this vital part of [Appellants’] case.
Trial Ct. Op. at 6-10 (citations & quotation marks omitted; emphases added).
We discern no abuse of discretion with the trial court’s conclusion that
Dr. Butler was not competent to render an expert opinion on causation
(including the increased risk of harm) to the requisite degree of medical
certainty. At issue in this case is Dr. Leontiev’s oncologic treatment and
decision-making following the radiologic detection of Kelly’s early-stage breast
cancer. Appellants alleged that as a result of Dr. Leontiev’s purported
negligent actions, she had to undergo double mastectomies, chemotherapy,
radiation, and multiple reconstructive surgeries. As such, Appellants’ burden
of proof was to demonstrate that Dr. Leontiev’s alleged failure to timely detect
the cancer increased the risk that such treatment was required and the ability
to obtain less invasive treatment was not possible. See Hamil, 392 A.2d at
1288.
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Dr. Butler’s background demonstrates that as a radiologist, she is
concerned with the detection of cancer, not the treatment of detected breast
cancer. Notably, the doctor averred that while she has experience with
working as part of a team of breast cancer specialists, she was qualified “to
evaluate the effects of delayed diagnosis of breast cancer in general terms.”
Appellants’ Brief in Opposition to Dr. Leontiev’s Motion in Limine Challenging
Appellants’ Expert Evidence, 9/23/22, at Exhibit B (Affidavit of Dr. Butler,
9/13/22, at 1) (unpaginated) (emphasis added). This general averment is
deficient where the law requires an expert’s opinion demonstrate, with a
reasonable degree of medical certainty, that a defendant’s conduct increased
the risk that the harm actually sustained by the plaintiff. Gradel, 421 A.2d
at 679. Moreover, Appellants have not pointed to any part of Dr. Butler’s
education, experience, or skill set that demonstrates to what extent she is
involved in the treatment and course of action following a diagnosis — Dr.
Butler fails to specify whether she is involved in entire treatment program or
just a specific part (meaning detection of the cancer).15
____________________________________________
15 Notably, Appellant would need to demonstrate that the harm suffered by
Kelly necessitated more invasive treatment — such as the radiation and
chemotherapy. We note that at her deposition, Kelly acknowledged some of
her doctors questioned the necessity of these procedures. See i.e. Oral
Deposition of Kelly A. Velesaris at 89-93 (Kelly acknowledging that: (1) Dr.
Kristine Widders, M.D., sent her a letter stating there was no indication for
chemotherapy; (2) Dr. Jennifer Rosenberg, M.D., recommended that radiation
would not provide a benefit in her case; and (3) Dr. Leah VonReyn Cream,
M.D., discussed chemotherapy but advised against it).
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We now turn to the cases Appellants relied on, Tong-Sommerford and
McFeeley, in their appellate argument. In Tong-Sommerford, the plaintiff-
decedent died after a feeding tube that was supposed to be inserted into his
stomach was improperly placed into his lung by a hospital radiologist. The
defendant-doctor incorrectly interpreted the x-ray image as “showing
termination of the feeding tube in decedent’s stomach when, in fact, it
terminated in [decedent’s] left lung.” Tong-Summerford, 190 A.3d at 637.
The matter proceeded to a jury trial, where the decedent’s expert was
qualified to testify about increased risk of harm but not causation. Id. at 647.
The jury returned a verdict in favor of the plaintiff and against the defendant-
doctor and her employer. The defendant-doctor argued the trial court erred
in failing to grant their motion for judgment notwithstanding the verdict
(JNOV) due to the plaintiff’s “failure to present competent evidence to support
[the] negligence claim.” Id. at 640. The defendants
stress[ed] that while [the radiology expert] testified [the doctor]
had breached the necessary standard of care when she did not
order an additional study of the [decedent]’s chest upon realizing
an abdominal study had been done, he did not testify that there
had been a breach in the standard of care with regard to [the
doctor]’s interpretation of the actual study performed.
Id. They further contended:
the trial court erred and abused its discretion when it only partially
granted their motion in limine to preclude [the plaintiff]’s expert .
. . from testifying to causation issues that allegedly exceeded his
expertise. They maintain that as a radiologist, [the expert] did
not possess the necessary training and experience to provide
competent trial testimony pertaining to internal medicine and
forensic pathology. . . .
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Id. at 646.
A panel of this Court determined the trial court “did not abuse its
discretion in permitting [the radiology expert] to opine that the deviations in
the standard of care increased the risk of harm[.]” Tong-Summerford, 190
A.3d at 647. Relying on the trial court’s reasoning, the panel noted: (1) the
radiology expert’s “qualifications as a board certified radiologist with 30 years
of experience in the field of radiology qualified him to provide an expert
opinion that the misplacement of a feeding tube in [the] decedent’s lung
increased the risk of harm to the decedent[;]” (2) the defendants’ “claim of
error is undermined by [the defendant-doctor’s] own acknowledgment that a
misplaced feeding tube into a patient’s lung could increase the risk of harm to
the patient[;]” and (3) “[i]t was within the province of the jury to weigh this
testimony as to [the expert’s] lack of knowledge in this regard which,
arguably, undermined his earlier statements at trial concerning [the
defendant-doctor’s] failure to order another radiology study.” Id. at 648.
Contrary to Appellants’ argument, Tong-Summerford supports the
trial court’s conclusion in the present matter where the court precluded the
radiology expert from testifying about causation as that issued exceeded the
doctor’s expertise. Appellants indicated that they would be calling Dr. Butler
as a causation expert. As mentioned above, Appellants were relying on Dr.
Butler’s expert opinion to establish that the delayed diagnosis caused the
progression of Kelly’s breast cancer, which necessitated the treatment she
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chose. Moreover, unlike in Tong-Summerford, Appellants have only
proffered a generalized statement — via Dr. Butler — concerning the increased
risk of harm. As such, Appellants’ reliance Tong-Summerford is misplaced.
Next, in McFeeley, the plaintiff-decedent died following complications
from a bowel perforation that stemmed from the delayed diagnosis of ovarian
cancer. McFeeley, 226 A.3d at 586. The plaintiff filed a medical negligence
complaint against the defendant-doctor, alleging the delay in diagnosis and
treatment increased the risk of harm to the plaintiff. Id. One of the plaintiff’s
arguments was a claim that “the trial court erred in concluding that [the
radiologist expert for the defense] qualified as an expert for causation
purposes under the MCARE Act standard.” Id. at 597.
A panel of this Court concluded “the trial court properly held [the
radiologist] possessed the necessary qualifications to interpret radiology
reports related to the gastrointestinal tract so as to provide competent
testimony related to causation.” McFeeley, 226 A.3d at 598. It merits
mention that the panel also “agree[d] with the trial court’s sound reasoning[,
where the expert], a board-certified gastrointestinal radiologist, offered an
opinion as to causation based on his review of CT scans, as well as a barium
enema” and concluded “the trial court did not abuse its discretion in concluding
[the expert] demonstrated that he has a reasonable pretension to specialized
knowledge on the subject matter in question.” Id. at 597 (citation & quotation
marks omitted).
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McFeeley is distinguishable from the present matter based on the
following. The radiology defense expert in that case was permitted to offer a
limited expert opinion to what caused the perforation (diverticulitis), not that
a delayed diagnosis of cancer at an earlier stage increased the risk of harm
that the decedent would suffer a perforation. Moreover, we point out that the
plaintiff in McFeeley retained a gynecologist oncologist expert, who
“explained that a staging system is used with regard to cancer in order to give
a prognosis as to a patient’s chances of surviving the cancer.” McFeeley, 226
A.3d at 587. As such, Appellants’ reliance on McFeeley is also misplaced.
Accordingly, we conclude the trial court did not abuse its discretion in
precluding Dr. Butler from offering expert testimony on causation under the
MCARE Act.
Regarding Appellants’ second argument, they claim the trial court erred
in failing to admit Dr. Forman as an expert witness regarding damages. See
Appellants’ Brief at 21. Specifically, they state:
Dr. Forman met with Kelly on two occasions for the purpose
of evaluating how her delayed breast cancer diagnosis impacted
her emotionally and psychologically, and influenced her decisions
regarding her treatment. He is not in any manner opining as to
whether there was a delayed diagnosis of her cancer, or whether
there was an increased risk of harm that occurred due to [Dr.]
Leontiev’s negligence. Rather, assuming these two issues to be
true, he is evaluating the impact they had on Kelly’s emotional
state and her decision-making relative to her treatment, as well
as the effect, in terms of damages, on her emotional health and
well-being post-diagnosis.
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Id. at 21-22. Moreover, Appellants assert that because Dr. Leontiev’s defense
focuses on
whether the aggressive treatment Kelly chose to undergo was
absolutely necessary[,] Dr. Forman’s role is to explain, from a
psychiatric point of view, how Kelly’s state of mind, particularly
with regard to her knowledge that there was a cancerous mass in
her body for two years before it was discovered, impacted her
treatment decisions following diagnosis.
Id. at 22. Appellants maintain “Dr. Forman’s testimony is not offered to
improperly boost the credibility of Kelly’s testimony.” Id.
Keeping our standards of review in mind, we note that in Dr. Forman is
board-certified in general psychiatric medicine with a subspeciality in forensic
psychiatry. See Trial Ct. Op. at 3. In his expert report, Dr. Forman averred
the following, in relevant part: “When [Kelly] was finally diagnosed, her
physicians provided her a menu of treatment options. She chose from that
menu. If the cancer had been diagnosed earlier, it is reasonably to conclude
that menu would not have included as many of the disfiguring and systemic
treatments [Kelly] received.” Dr. Leontiev’s Motion in Limine at Exhibit “C”
(Dr. Forman’s Report re Kelly Velesaris, 6/7/21, at 9).
The trial court explained its rationale for precluding Dr. Forman as
follows:
Although [Dr. Forman] was identified as a damages witness, [his]
report could be construed to refer to the effect the delayed
diagnosis had on the possible worsening of [Kelly]’s cancer and
the treatment options which became necessary as a result of the
delayed diagnosis. Due to this possibility, [Dr. Leontiev]
apparently proceeded with caution in including this aspect of Dr.
Forman’s opinion in the Omnibus Motion in Limine. We agreed
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with this assessment, and for that reason included Dr. Forman in
our [October 5, 2022, order]. A review of Dr. Forman’s report and
Curriculum Vitae likewise reveals that based on his background in
the field of psychiatry, he does not have the requisite background
to render an opinion regarding the effects of the alleged delay in
detection on [Kelly]’s prognosis and/or the treatment made
necessary by the delay for her breast cancer. Thus, we precluded
his testimony on that issue.
Trial Ct. Op. at 10. We agree with the trial court’s rationale while adding these
additional comments.
As Dr. Leontiev points out, he “never challenged Dr. Forman’s
competency to render causation opinions related to [Kelly]’s alleged emotional
injuries.” Dr. Leontiev’s Brief at 35. Moreover, in his motion in limine, Dr.
Leontiev specifically mentioned that he was not suggesting “Dr. Forman [was]
unqualified to render a causation opinion relating to any alleged emotional
injuries or disorders resulting from the alleged delay to detect.” Dr. Leontiev’s
Motion in Limine at 9 n.1. Rather, he pointed out that that “issue is separate
and distinct from the issue of whether the alleged delay to detect require more
aggressive treatment or actually resulted in harm to” Kelly. Id. As such, Dr.
Leontiev emphasizes that he “never challenged Dr. Forman’s competency to
render an opinion regarding how [Kelly]’s ‘delayed breast cancer diagnosis
impacted her emotionally and psychologically, and influenced her decisions
regarding her treatment.’” Dr. Leontiev’s Brief at 36, quoting Appellants’ Brief
at 21-22.
Moreover, a review of the record reveals that the trial court’s October
5, 2022, order included a ruling relating to Dr. Forman’s competency. See
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Dr. Leontiev’s Brief at 35. Specifically, the court stated, in relevant part, Dr.
Forman was precluded “from expressing an expert opinion as to causation,
i.e., whether [Kelly] would have had a more favorable prognosis for treatment
and eventual outcome if the diagnosis of cancer had been made at the earlier
date(s) suggested by the evidence adduced at trial.” See Order, 10/5/22, at
3. However, the trial court’s order did not include a finding that Dr. Forman
lacked the competency to offer an expert opinion regarding Kelly’s “delayed
breast cancer diagnosis impacted her emotionally and psychologically, and
influenced her decisions regarding her treatment.” Appellants’ Brief at 21-22.
As such, his argument — that the trial court erred in finding Dr. Forman was
precluded from providing expert testimony regarding the impact of Kelly’s
emotional state and her decision-making relative to her treatment — has no
merit.
Furthermore, the trial court’s October 5, 2022, order, also provided that
“Dr. Forman is prohibited from expressing an opinion as to whether any
mental illness interfered with the decision-making process of [Kelly] regarding
her cancer treatment.” Order, 10/5/22, at 3. However, a review of Appellants’
concise statement reveals that they did not preserve a claim regarding mental
illness expert testimony. The concise statement provided, in pertinent part:
2. [T]he trial court erred in entering summary Judgment in favor
of [Dr. Leontiev], and against [Appellants] because the [court’s]
October 5, 2022, opinion which prohibited Dr. Howard Forman’s
testimony is in error. Again, the reason for [the c]ourt’s ruling
is vague and not discernable from the record. However, Dr.
Forman is a damages witness only and his testimony would
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not include his own opinions regarding [Dr. Leontiev’s]
negligence or causation related thereto. Dr. Forman is
qualified under subsection (b) of the § 512 of the MCARE Act to
testify, and to exclude him is in error, again for the reasons set
forth in [Appellants’] Briefs in Opposition to [Dr. Leontiev’s]
Motions.
Appellants’ Concise Statement at 2 (emphasis added). Accordingly, any claim
regarding mental illness expert testimony is waived. See Pa.R.A.P.
1925(b)(4)(vii) (providing that issues not included in the concise statement
are waived); see also Pa.R.A.P. 302(a) (providing that issues not raised in
the lower court are waived and cannot be raised for the first time on appeal).
Therefore, Appellants’ second argument is unavailing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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