J-A13020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARVIN SMITH, INDIVIDUALLY AND 

AS ADMINISTRATOR OF THE ESTATE 

OF TANYA SMITH, DECEASED 

Appellant

v.

ANNIE KANNARKATT, M.D., AND 

CANCER CARE ASSOCIATES OF 

YORK, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1084 MDA 2022

Appeal from the Order Entered July 6, 2022

In the Court of Common Pleas of York County Civil Division at No(s): 

2018-SU-002317

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED: MARCH 11, 2024

Marvin Smith, individually and in his capacity as Administrator of the 

Estate of Tanya Smith, Deceased, appeals from the order, entered in the Court 

of Common Pleas of York County, denying his post-trial motion to remove a 

nonsuit and for a new trial. After our careful review, we vacate and remand 

for a new trial.

The trial court set forth the factual and procedural history of this matter 

as follows:

In 2017 Plaintiffs’ decedent, Tanya Smith [(“Decedent”)], 

presented with an enlarged lymph node[,] which had been 

discovered during treatment for shoulder pain she was

experiencing. A biopsy of the lymph produced a sample, which[,]

____________________________________________

* Former Justice specially assigned to the Superior Court.
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when tested[, led] to a diagnosis of stage 4 breast cancer[, 

although radiological testing revealed no primary tumor in the 

breast]. Upon this diagnosis, [Decedent] begin treating with

Annie Kannarkatt[, M.D.,] at Cancer Care Associates of York, Inc. 

[Doctor] Kannarkatt began a treatment regime which included 

chemotherapy and radiation therapy [appropriate to a diagnosis 

of breast cancer]. While the areas exposed to radiation therapy 

saw improvement, the chemotherapy produced little to no 

improvement. By 2018[,] the cancer had spread throughout 

[Decedent’s] abdomen. In 2018[, Decedent] had her gall bladder 

removed, which contained cancerous tissue. This tissue was 

biopsied, which [led] to a revised diagnosis of an incredibly rare 

form of cancer known as ALK positive large B-cell lymphoma.

Upon receiving this new diagnosis, [Decedent] transferred her 

care to the Milton S. Hershey Medical Center. There, [Decedent] 

underwent a regime of chemotherapy directed to lymphoma[-

]type cancers, which initially produced little[-]to[-]no response. 

[Decedent] then underwent “salvage” chemotherapy, which 

reduced her cancer load to the point of being able to undergo a 

stem cell transplant. In December of 2018[, Decedent] underwent 

a stem cell transplant. Unfortunately, she did not respond 

positively to the transplant, and she died January 6, 2019.

Prior to her death, in August of 2018[, Decedent] and her husband 

initiated the present action. During the course of this action[, 

Decedent’s] estate was substituted after her death, and Plaintiffs 

undertook several amended pleadings. Relative to the instant

post-trial motion, on February 26, 2021[,] attorneys for WellSpan, 

a formerly named defendant, filed a motion in limine, which, inter 

alia, sought to preclude reference to handwritten meeting notes 

from a tumor board meeting at which a then[-]unnamed and

unidentified patient was discussed. This patient was later deduced 

to be [Decedent].

By order dated March 16, 2021[,] the court granted WellSpan’s 

motion and precluded reference to the tumor board notes.

Plaintiffs requested reconsideration, which the court granted. 

Prior to the scheduled start of trial on May 21, 2021, the court

entertained oral argument on the matter, after which the court 

reissued its original order precluding testimony referenc[ing] the 

tumor board notes.

[T]rial was scheduled to commence on May 21, 2021[; however,]

WellSpan requested a continuance . . ., as one of its expert 
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witnesses died unexpectedly the Friday evening before the 

Monday morning commencement of the trial. After this turn of 

events, Plaintiff and WellSpan agreed to mediate Plaintiffs’ claims.

That mediation effort proved successful, resulting in WellSpan 

being dismissed from the action and subsequent trials.

This matter was first tried before a jury beginning October 21, 

2021[,] and concluding October 28, 2021[, at which time] the jury 

could not return a verdict. No error was claimed by either party 

at the time of the mistrial resulting from the hung jury. The

matter was again scheduled for trial, which did in fact commence 

on April 25, 2022.

Plaintiffs rested on April 27, 2022, after which Defendants moved 

for an involuntary non-suit. After oral argument on Defendants’ 

motion, the court granted the motion and entered judgment in 

favor of the Defendants. Plaintiffs timely filed [a] post[-]trial 

motion [seeking removal of the non-suit and a new trial. After 

briefing, the court denied the motion.]

Trial Court Opinion, 7/6/22, at 1-3 (unpaginated) (unnecessary capitalization 

omitted).

Smith filed a timely notice of appeal, followed by a court-ordered 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He 

raises the following claims for our review:

1. Whether the trial court erred and/or abused its discretion in 

granting non-suit and denying [Smith’s] post-trial motion to 

remove nonsuit and for new trial, where:

[1]

____________________________________________

1

In their brief, Appellees argue that Smith has waived sub-issues 1.b through 

1.d for failure to raise them in post-trial motions. We agree. Although Smith

includes those claims in his Rule 1925(b) statement, “the filing of a [Rule] 

1925(b) statement does not excuse the failure to file post-trial motions and 

does not revive or preserve issues that are waived for failure to file post-trial 

motions.” Diamond Reo Truck Co. v. Mid-Pac. Indus., Inc., 806 A.2d 423, 

429 (Pa. Super. 2002). As Smith raised and argued only claims 1.a and 2 in 

his post-trial motion and brief in support thereof, the remainder of his claims 

are waived. 
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a. [Smith] presented sufficient expert testimony of an 

increased risk of harm to the requisite degree of medical 

certainty;

b. the trial court improperly relied upon Appellees’ 

presentation of evidence which the court allowed to be 

presented out-of-turn during [Smith’s] case-in-chief; and

c. the trial court improperly failed to consider all evidence 

beneficial to [Smith]; and

d. [Smith] presented sufficient lay witness and expert 

testimony to the requisite degree of medical certainty of 

factual cause.

2. Whether the trial court erred and/or abused its discretion when 

it ruled the Tumor Board meeting notes to be inadmissible hearsay 

and/or abused its discretion when it precluded any and all 

references to the notes, including for impeachment purposes.

Brief of Appellant, at 5-6 (rephrased for ease of disposition; unnecessary 

capitalization and footnotes omitted).

Smith first challenges the trial court’s grant of—and refusal to remove—

a nonsuit. In Rolon v. Davies, 232 A.3d 773 (Pa. Super. 2020), this Court 

reiterated the applicable standard of review as follows:

In reviewing the entry of a nonsuit, our standard of review is wellestablished: we reverse only if, after giving appellant the benefit 

of all reasonable inferences of fact, we find that the factfinder 

could not reasonably conclude that the essential elements of the 

cause of action were established. Indeed, when a nonsuit is 

entered, the lack of evidence to sustain the action must be so clear 

that it admits no room for fair and reasonable disagreement. The 

fact-finder, however, cannot be permitted to reach a decision on 

the basis of speculation or conjecture.

Id. at 776-77 (citation omitted). “The appellate court must review the 

evidence to determine whether the trial court abused its discretion or made 
J-A13020-23

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an error of law.” Baird v. Smiley, 169 A.3d 120, 124 (Pa. Super. 2017) 

(citation omitted).

Medical malpractice is a form of negligence. Griffin v. University 

of Pittsburgh Med. Ctr.-Braddock Hosp., 950 A.2d 996, 999 

(Pa. Super. 2008)[.] To make a prima facie case[,] a plaintiff 

must establish that the physician owed the plaintiff a duty and 

breached it; that the breach was the proximate cause of the 

plaintiff’s harm; and that the alleged damages were a direct result 

of the harm. Id. at 999-1000 (quoting Quinby v. 

Plumsteadville Fam. Practice, Inc., [] 907 A.2d 1061, 1070-

71 ([Pa.] 2006)). The plaintiff must present expert testimony 

“where the circumstances surrounding the malpractice claim are 

beyond the knowledge of the average layperson.” Id. at 1000 

(quoting Vogelsberger v. Magee-Womens Hosp. of UPMC 

Health Sys., 903 A.2d 540, 563 n.11 (Pa. Super. 2006)[.]

An expert must testify, to a reasonable degree of medical 

certainty, that the defendant physician deviated from acceptable 

standards, and that the deviation was the proximate cause of the 

plaintiff’s harm. Vicari[ v. Spiegel, 936 A.2d 503,] 510 [(Pa. 

Super. 2007)]. Further, “a medical opinion need only 

demonstrate, with a reasonable degree of medical certainty, that 

a defendant’s conduct increased the risk of the harm actually 

sustained, and the jury then must decide whether that conduct 

was a substantial factor in bringing about the harm.” Id. (quoting 

Smith v. Grab, 705 A.2d 894, 899 (Pa. Super. 1997)).

Rolon, 232 A.3d at 777. 

“[W]here the plaintiff is unable to show to a reasonable degree of 

medical certainty that the physician’s actions/omissions caused the resulting 

harm, but is able to show to a reasonable degree of medical certainty that the 

physician’s actions/omissions increased the risk of harm, the question of 

whether the conduct caused the ultimate injury should be submitted to the 

jury.” Billman v. Saylor, 761 A.2d 1208, 1212 (Pa. Super. 2000). 
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An example of this type of case is a failure of a physician to [make 

a timely diagnosis]. Although timely detection of a [disease or 

medical condition] may well reduce the likelihood that a patient 

will have a terminal [or adverse] 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 [plaintiff] 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.

Id. at 1212, quoting Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990).

“Where the events and circumstances of a malpractice action are beyond 

the knowledge of the average lay person, the plaintiff must present expert 

testimony that the acts of the medical practitioner deviated from good and 

acceptable medical standards, and that such deviation was a substantial factor 

in causing the harm suffered.” Cohen v. Albert Einstein Med. Center, 592 

A.2d 720, 723 (Pa. Super. 1991). 

It is the plaintiff’s burden to prove that the harm suffered was due 

to the conduct of the defendant. As in many other areas of the 

law, that burden must be sustained by a preponderance of the 

evidence. Whether in a particular case that standard has been 

met with respect to the element of causation is normally a 

question of fact for the jury; the question is to be removed from 

the jury’s consideration only where it is clear that reasonable 

minds could not differ on the issue.

Hamil v. Bashline, 392 A.2d 1280, 1284–85 (Pa. 1978).

Smith first alleges that entry of nonsuit was improper where he

presented sufficient expert testimony of an increased risk of harm to the 

requisite degree of medical certainty. Smith argues that the trial court 
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misunderstood Smith’s burden and that, when reviewed in its entirety and 

giving Smith the benefit of all reasonable inferences of fact, the testimony 

proffered by Smith “sufficiently established that [Dr. Kannarkatt’s] negligence 

increased the risk of harm to [Decedent] in accordance with Supreme Court 

precedents.” Brief of Appellant, at 34. Specifically, Smith asserts that the 

testimony of his causation expert, Dr. Robert Soiffer, emphasized the 

importance of employing aggressive and appropriate chemotherapy treatment 

as early as possible, as bone marrow transplants—which can result in a cure—

“work better the less [the] disease burden and at the earliest possibility.” Id.

at 35. Smith cites the following testimony of Dr. Soiffer:

[Q:] So[,] what difference is there, if any, of [Decedent’s]

chances of having a prolonged life if this diagnosis had been made 

and those same treatments were given to her in 2017 instead of 

2018?

A: The difference between 2017 and 2018 was that the disease 

had spread considerably between 2017 and 2018. It was at a 

later stage. She had already received considerable amounts of 

chemotherapy.

And in general, transplants performed in first remission yield far 

better results than transplants performed in subsequent 

remissions or when patients are in remission. So[,] the optimal 

time to proceed with aggressive therapy would have been earlier

in her course.

N.T. Trial, 4/26/22, at 183.

Smith notes that Dr. Soiffer further testified about the adverse effects 

of a patient receiving inappropriate forms of chemotherapy:

Q: [] Second, you had said about the passage of time. What 

happens to cancers the longer they go untreated?
J-A13020-23

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A: Well, when cancers are untreated or inadequately treated, they 

can grow, they can become resistant to chemotherapy that 

they’ve received in the past, and they can mutate. So[,] the cells 

are constantly growing. They can develop new mutations that 

make them more and more difficult to treat. That is not 

uncommon in patients with different malignancies that there is 

what’s called—the term that’s used is called clonal progression. 

So that the tumor clones, progress[es] that is. It’s actually called 

clonal evolution. It evolves to a more complicated state with more 

mutations that make it more resistant to chemotherapy. 

Id. at 187.

Finally, Smith notes the following opinion expressed by Dr. Soiffer:

Q: [] Dr. Soiffer, do you have an opinion to a reasonable degree 

of medical certainty whether the 13-month delay in making the 

correct diagnosis and starting treatment for this aggressive 

lymphoma as you have already described, did that deprive 

[Decedent] of a substantially better opportunity for a longer life 

beyond when she died on January 6th, 2019?

. . .

A: I think it did because the patient was subjected to 

chemotherapy that was—did not address her malignancy.

And there are two aspects to that concern. The first is that she 

did not get adequate therapy for the malignancy during that 

interval, during that period of time. She received agents that were 

not designed to treat lymphoma but rather designed to treat 

breast cancer. So that allowed the lymphoma to grow and spread 

to the point where it became more difficult to treat her 

subsequently and to treat her successfully subsequently. 

In addition, during that 12[-]month or approximately a year 

period of time, she was, of course, subjected to chemotherapy. 

And chemotherapy has its own series of side effects that can be 

debilitating for a patient, debilitating on the patient and weaken 

that patient unnecessarily.

Brief of Appellant, at 38-39, quoting N.T. Trial, 4/26/22, at 189-90. 

Smith asserts that the foregoing testimony of Dr. Soiffer
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established that Appellees’ failure to treat [Decedent’s] cancer 

properly and in a timely manner . . . exposed her to direct injury

from improper chemotherapy for 13 months, allowed her cancer 

to grow and mutate and become resistive, and allowed the cancer 

to spread into her abdomen, thereby decreasing her chance for a 

better outcome and substantially decreasing her chance for a 

longer life. By admittedly failing to read Dr. Soiffer’s testimony in 

its entirety before pronouncing judgment, the [t]rial [c]ourt 

completely missed the clarity and extent of [Dr.] Soiffer’s opinion. 

Brief of Appellant, at 39-40 (emphasis in original). 

Smith asserts that Dr. Soiffer’s testimony was corroborated by the 

testimony of Decedent’s treating oncologist, Seema Naik, M.D.,

2

that, “had 

[Decedent] been treated [with the proper therapies] in March 2017, before 

her cancer became widespread Stage IV, [she] had a better chance of beating 

the cancer or at least prolonging her life.” Id. at 42. Dr. Naik further testified

that “the ultimate outcome could have been way better if we would have seen 

her at initial presentation.” Id., citing Deposition of Seema G. Naik, M.D., 

3/18/21, at 48. 

Appellees respond that Dr. Soiffer’s causation evidence was speculative 

and incapable of sustaining Smith’s burden of proof. Appellees argue that 

“[a]n expert fails [the] standard of certainty if he testifies that the alleged 

cause ‘possibly’ or ‘could have’ led to the result, that it ‘could very properly 

account’ for the result, or even that it was ‘very highly probable’ that it caused 

the result.” Brief of Appellees, at 31, quoting Montgomery v. South Phila. 

Medical Group, 656 A.2d 1385, 1390 (Pa. Super. 1995). Appellees argue 

that the “substance and totality of [Dr. Soiffer’s] testimony reveals speculative 

____________________________________________

2 Smith presented Dr. Naik’s videotaped deposition testimony at trial. 
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and equivocal medical opinions insufficient to carry [Smith’s] burden of proof.” 

Id. at 32. Appellees assert that Dr. Soiffer has never treated ALK positive 

large B-cell lymphoma, of which only 150 cases have been reported. See id. 

Appellees argue that Decedent outlived all known statistical possibilities for 

her form of lymphoma, for which there is no established treatment regimen. 

Appellees cite Dr. Soiffer’s testimony that “[t]here’s not one specific regimen, 

but [we would utilize] one of those regimens and hope that that patient 

achieves a remission.” Id. at 34, quoting N.T. Trial, 4/26/22, at 203 

(emphasis added by Appellees). Moreover, Appellees argue, Dr. Soiffer was 

unable to offer any opinion as to survivability:

Q: So[,] you can’t say with any degree of certainty that had ALK 

positive B-cell lymphoma treatment been provided at the outset, 

[Decedent’s] course would have been any different. You can’t say 

that with any certainty, can you?

A: I don’t know what her survival would have been. I certainly 

can’t predict that and how she would have—her as an individual, 

responded to the drugs that would be used to treat ALK positive 

lymphoma.

I do know that she did not have the opportunity, though, to see 

how she would respond. And basically . . . she went from having 

a possible chance at a long-term remission [to] making that 

possible opportunity impossible by not having the lymphomadirected therapy up front. 

Brief of Appellees, at 35, quoting N.T. Trial, 4/26/22, at 205 (crossexamination of Dr. Soiffer). 

Relying on Montgomery, supra, Appellees argue that this testimony 

fails to meet even the relaxed “increased risk of harm” standard of causation 

under Hamil, supra. In Montgomery, the plaintiff filed suit alleging 
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negligence against a physician’s assistant for failing to refer her to a physician 

after she complained of pain in her left breast, which was ultimately diagnosed 

as breast cancer. After reviewing the relevant case law on increased risk of 

harm, this Court analyzed the plaintiff’s expert testimony as follows and 

concluded it did not meet the relaxed Hamil standard:

In the instant case, there was evidence that the plaintiff had been 

examined by employees of the defendant and that the plaintiff had 

complained of pain in her left breast. There also was evidence 

that, despite this complaint, the plaintiff had not been referred to 

a physician. There was no evidence, however, of the presence of 

any lump or mass; and a mammogram showed no abnormality.

Thus, there was no evidence that an examination by a physician 

would have disclosed anything more than was discovered by the 

physician's assistant. The time when the tumor could first have 

been detected does not appear. Was it detectable a year earlier 

or only a short time before it was discovered by Dr. Seidman? 

Although Dr. Karp testified that the failure to refer plaintiff to a 

physician fell below the standard of care required of a physician’s 

assistant, he was either unable or unwilling to say that the risk of 

harm had been increased thereby. He said only that it was “very 

possible” that the failure to refer her to a physician “may have 

increased her chance of having a positive lymph node” when the 

cancer was eventually diagnosed and that it “may have increased 

her risk for requiring a mastectomy with chemotherapy.” On 

cross-examination he said, “[H]ad the tumor been diagnosed one 

year earlier, it is indeed possible that if it were small enough, the 

breast could have been conserved and treated by 

lumpectomy/radiation therapy alone.” All of this was speculative, 

he conceded, saying “one can only speculate as to had it been 

diagnosed earlier what its size may have been, since we don't 

know, nor will we ever know.”

Montgomery, 656 A.2d 1392-93.

Appellees assert that Smith’s entire argument is based on a 

mischaracterization of its actual claim against Dr. Kannarkatt. Specifically, 

Appellees argue that the cause of Decedent’s injury is related solely to the 
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misdiagnosis of her cancer by the pathologist, Dr. Wright, and that Smith’s

claim against Dr. Kannarkatt—a medical oncologist—is based solely on Dr. 

Kannarkatt’s alleged failure to communicate with Dr. Wright to challenge the 

pathology diagnosis. Appellees argue that “[Smith’s] evidence only 

established a causal connection to the negligence of Dr. Wright, the 

pathologist, not Dr. Kannarkatt.” Brief of Appellees, at 27. 

Appellees cite our Supreme Court’s decision in Hamil, supra, in which 

the Court adopted the increased risk of harm standard as set forth in section 

323(a) of the Restatement (Second) of Torts, but confirmed that a plaintiff 

must still present “evidence that a defendant’s negligent act or omission 

increased the risk of harm to a person in plaintiff’s position, and that the harm 

was in fact sustained[.]” Hamil, 392 A.2d at 1286. Appellees argue that, in 

this case, Smith adduced no evidence to establish “that the harms alleged 

were related to the theory of negligence asserted against Dr. Kannarkatt[.]” 

Brief of Appellees, at 29. Appellees argue that Dr. Soiffer’s causation 

testimony “fail[ed] to create the legally necessary nexus to [Smith’s] ‘failure 

to communicate’ theory of negligence alleged against Dr. Kannarkatt[.]” Id.

at 26. Moreover, Smith “did not present a pathology expert to connect the 

theories of liability, causation[,] and damages. Instead, the only pathologist 

to testify was Dr. Wright[,] who . . . confirmed that he was solely responsible 

for [Decedent’s] misdiagnosis.” Id. The Appellees assert that “[e]ven Dr. 

Wright was incapable of providing any certainty that any communication from 

Dr. Kannarkatt would have changed his pathologic diagnosis and, 
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consequently, the treatment regimen.”3 Id. at 27. Accordingly, “[p]ermitting 

[Smith’s] claim to proceed to a jury would have violated the fundamental 

principles upon which [the Supreme Court in] Hamil based the increased risk 

of harm standard.” Id. 

In response, Smith cites the testimony of his standard of care expert, 

Dr. Goldklang, who testified that medical oncologists, such as Dr. Kannarkatt, 

“play an integral role in the diagnostic process, by corroborating the clinical 

and radiological findings with the pathology diagnosis, before determining the 

course of treatment.” Reply Brief of Appellant, at 5. Smith argues:

As Dr. Wright explained and Dr. Goldklang confirmed, the system 

for arriving at a patient’s cancer diagnosis is metaphorically a 

three-legged stool, where the legs are represented respectively 

by the radiological findings, clinical findings, and pathology 

diagnosis. In the vast majority of cancer patients, the pathology 

diagnosis “syncs” with the radiological . . . and [] clinical findings 

and there is no reason for the medical oncologist to question the 

pathology diagnosis. However, when[, as here,] the pathology 

diagnosis does not correlate with the clinical and radiological 

____________________________________________

3 Doctor Wright testified as follows:

Q: If you had gotten a call [asking “are you sure this is not 

lymphoma as opposed to adenocarcinoma?”], would that be 

something that you would look into further from a pathology 

standpoint?

A: I suppose I could. . . . [B]ut I don’t know how that 

conversation would have gone, whether I would have dug my 

heels in and said, [“]I’m very confident because it looks so 

epithelial[”] or whether, if I really heard urgency and concern in 

the voice, I might have said, [“O]kay, I’ll show several other 

pathologists and maybe we can[”]—it’s hard to say.

N.T. Trial, 4/26/22, at 271-72. 
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findings, it is the medical oncologist’s responsibility to 

communicate that inconsistency to the pathologist.

[4]

 The medical 

oncologist’s job is to make sure he/she is treating the correct 

malignancy with the right combination of chemicals. In fact,

pathologists expect that when the other two legs of the diagnostic 

stool do not “sync” with the pathology diagnosis, the clinician 

(medical oncologist) will communicate the discrepancy and give 

the pathologist the opportunity to revisit the pathological analysis. 

Otherwise, the diagnostic system fails and there is no purpose to 

the diagnostic stool.

Id. at 5-6. 

Smith argues that, at the time Dr. Wright made his pathological 

diagnosis, there had been no breast imaging, which, when performed, failed 

____________________________________________

4 Specifically, Dr. Goldklang testified as follows:

A: [] If one has a diagnosis of a different pathology, in this case 

the pathology being adenocarcinoma, the doctor who is going to 

be treating the patient with significant chemicals and significant

side effects needs to really ask the pathology group to take a 

deeper dive, saying based on the appearances of other 

information, the diagnosis that you made, meaning the 

pathologist, just doesn’t seem to fit.

Q: Is there any harm in contacting pathology and asking them to 

take a deeper dive?

A: I think it’s very important and both parties learn more by doing 

so. 

. . .

Pathologists, as excellent doctors as they may be, are not infallible 

and they did not have additional information that may have had 

them look further and take a deeper dive into it if they were to 

have spoken with the treating oncologist.

N.T. Trial, 4/27/22, at 346-47, 350.
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to confirm the existence of a primary breast tumor.5 Id. at 8. Doctor

Kannarkatt, however, had access to this post-diagnosis imaging6 and was the 

only doctor in possession of all the radiological and clinical findings, as well as 

the pathology diagnosis. Nevertheless, she failed to contact Dr. Wright to 

discuss the fact that his diagnosis did not fit with the radiological and clinical 

findings. Id. at 9. As a result, Smith argues, “[Decedent] lost the chance to 

have the pathologist find the correct diagnosis that matched her clinical and 

radiologic evidence.” Id. at 10. Therefore, Smith asserts he established that 

Dr. Kannarkatt’s conduct “contributed to the failure to identify the lymphoma 

and the misdiagnosis” and he proved “a sufficient nexus between the alleged 

misconduct and the damages incurred.” Id. at 12. We agree.

Upon review of the record in this matter, we conclude that Smith

adduced evidence sufficient to establish a prima facie case, under the reduced 

standard of certainty adopted by the Supreme Court in Hamil, that Dr. 

Kannarkatt’s conduct increased the risk of harm to Decedent, and that the 

case should have been submitted to a jury. The evidence demonstrated that

the clinical and radiological findings were not consistent with the pathologist’s 

diagnosis of metastatic breast cancer. The evidence further showed that, at 

____________________________________________

5 Doctor Goldklang testified that, “in order for adenocarcinoma to spread to 

the lymph nodes and bones in the shoulder of [Decedent]”, in the “vast 

majority of cases” there is a primary site for that adenocarcinoma. N.T. Trial,

4/27/22, at 346. He further testified that a primary tumor would “rarely” be 

missed by a PET scan. Id. 

6 The imaging included a CT scan of the chest, a diagnostic mammogram, a 

diagnostic ultrasound, and a PET scan. See N.T. Trial, 4/27/22, at 344, 346.
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the time Dr. Wright made his pathological diagnosis, there had been no breast 

imaging to determine the existence of a primary tumor. See N.T. Trial, 

4/27/22, at 389. Radiological studies performed subsequent to the 

pathological diagnosis failed to confirm the diagnosis of breast cancer. Id. at 

390. Doctor Goldklang testified that, as the treating medical oncologist who 

is “a very integral part of the process,” id. at 343, it was Dr. Kannarkatt’s 

obligation, “if things [didn’t] fit the clinical picture, to speak directly to the 

other doctors involved in the case.” Id. at 392. Doctor Goldklang testified:

If one has a diagnosis of a different pathology, in this case the 

pathology being adenocarcinoma, the doctor who is going to be 

treating the patient with significant chemicals and significant side 

effects needs to really ask the pathology group to take a deeper 

dive, saying based on the appearances of other information, the 

diagnosis that you made, meaning the pathologist, just doesn’t 

seem to fit.

Id. at 347. As a result of her failure to question the pathologist’s diagnosis in 

light of conflicting clinical and radiological findings, Dr. Goldklang concluded 

that Dr. Kannarkatt “failed to meet the standard of care in evaluation and 

treatment of [Decedent]” based on “concerns [he had] about no 

communication with the pathologist who was rendering an opinion from the 

slides presented.” Id. at 342.

In addition, the evidence also demonstrated that the incorrect diagnosis 

that went unchallenged by Dr. Kannarkatt resulted in Decedent undergoing 

approximately one year of debilitating chemotherapy with drugs that were 

inappropriate to her cancer. See id. at 417 (Smith testifying that, between 

March 2017 and March 2018, there was never a time Decedent was not 
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undergoing chemotherapy and the treatments resulted in her not being able 

to do “hardly . . . anything” anymore). Doctor Soiffer testified that, over that 

period, Decedent’s cancer “spread considerably” and had advanced to a later 

stage. Id., 4/26/22, at 183. As a result of receiving treatment that did not 

actually address her malignancy, Dr. Soiffer testified that Decedent was 

“deprive[d] . . . of a substantially better opportunity for a longer life.” Id. at 

189-90. Although, as Appellees correctly note, Dr. Soiffer could not opine 

with certainty what Decedent’s likelihood of survival would have been, we 

conclude that, under Hamil, he was not required to. As the Supreme Court 

stated in that case:

When a defendant’s negligent action or inaction has effectively 

terminated a person’s chance of survival, it does not lie in the 

defendant’s mouth to raise conjectures as to the measure of the 

chances that he has put beyond the possibility of realization. If 

there was any substantial possibility of survival and the 

defendant has destroyed it, he is answerable. Rarely is it 

possible to demonstrate to an absolute certainty what 

would have happened in circumstances that the wrongdoer 

did not allow to come to pass. The law does not in the existing 

circumstances require the plaintiff to show to a certainty that the 

patient would have lived had she been hospitalized and operated 

on promptly.

Hamil, 392 A.2d at 1288, quoting Hicks v. United States, 368 F.2d 626, 

632 (4th Cir. 1966) (emphasis added). 

Moreover, Montgomery, which Appellees analogize to the facts of this 

case, is distinguishable. In that case, the plaintiff’s expert was “unwilling or 

unable” to state whether the plaintiff’s risk of harm was increased where

“there was no evidence that an examination by a physician would have 
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disclosed anything more than was discovered by the [defendant] physician’s 

assistant.” Montgomery, 656 A.2d at 1393. Here, however, Dr. Goldklang 

testified that Dr. Kannarkatt breached the standard of care by failing to 

question the pathologist’s diagnosis in light of the clinical and radiological 

findings, and Dr. Soiffer’s testimony provided a basis for a jury to find that Dr. 

Kannarkatt’s failure resulted in a significant delay in proper treatment which 

substantially reduced Decedent’s chance for a better outcome—an outcome 

that could have included complete remission after proper chemotherapy 

modalities and, thereafter, a total cure through a subsequent bone marrow 

transplant. See N.T. Trial, 4/26/22, at 180-81 (Doctor Soiffer testifying bone 

marrow transplants can provide cure for patients with Decedent’s diagnosis, 

but “[t]he more disease the patient has going into a transplant or the later in 

their course they are when they undergo a transplant, the worse their outcome 

is going to be with a transplant”).

Under the standard adopted by our Supreme Court in Hamil, “medical 

opinion need only demonstrate, with a reasonable degree of medical certainty, 

that a defendant’s conduct increased the risk of the harm actually sustained, 

and the jury then must decide whether that conduct was a substantial 

factor in bringing about the harm.” Jones v. Montefiore Hosp., 431 

A.2d 920, 924 (Pa. 1981) (emphasis added) (holding increased risk of harm 

instruction appropriate “whether or not the medical testimony as to causation 

was expressed in terms of certainty or probability”). The record in this matter 

supports a finding that Dr. Kannarkatt breached her duty of care by failing to 
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question Dr. Wright’s pathological diagnosis in light of the incompatible clinical 

and radiological findings and, in doing so, increased Decedent’s risk of harm 

by substantially delaying her ability to receive proper treatment, while 

simultaneously allowing the disease time to mutate and spread further 

throughout her body, which was, in turn, weakened by a year’s worth of 

inappropriate breast cancer chemotherapy. As such, the trial court erred in 

refusing to allow the jury to make the determination as to whether Dr. 

Kannarkatt’s conduct was a substantial factor in bringing about the harm that 

befell the Decedent. See id. 

Lastly, Smith claims that the trial court abused its discretion when it 

deemed notes from a “tumor board” meeting inadmissible and precluded all 

reference thereto at trial. Specifically, Decedent’s case was presented at a 

multidisciplinary oncology conference, known colloquially as a “tumor board,” 

on March 16, 2017. Generally, tumor boards offer an opportunity for clinicians 

who are treating a patient to present their case to a multidisciplinary group of 

physicians, including oncologists, surgical oncologists, radiologists, and 

pathologists, to “discuss unusual cases and get some consensus or make 

recommendations” regarding the patient’s course of treatment. N.T. Trial, 

4/27/22, at 377; see also id. at 372. The patient is not identified when her 

case is presented to a tumor board. See id. at 375-76. Rather, an 

anonymous “Patient Information Sheet” is distributed to the attendees, 

outlining the patient’s diagnoses and past medical history. See Plaintiff’s 
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Response to Omnibus Motion in Limine of Dr. Wright and Wellspan, 3/5/21, at 

Exhibit I. 

In attendance at the March 16, 2017 tumor board meeting was Misty 

Stiffler, a certified tumor registrar (“CTR”), whose role at the meeting was to 

“take attendance and . . . take any notes.” Deposition of Misty Stiffler, 

6/11/19, at 9. As a CTR, Stiffler would not record everything that transpired 

at a tumor board meeting; rather, her notes were “just brief summaries, just 

jotting down as they’re speaking.” Id. at 13. The notes are “internal for the 

registrars only.” Id. at 10. 

In their omnibus motion in limine, defendants Wellspan and Dr. Wright

sought to preclude Stiffler’s notes as unreliable hearsay evidence and, in the 

alternative, if introduced, to preclude plaintiff from mischaracterizing the 

meaning of the notes. See Omnibus Motion in Limine of Dr. Wright and 

Wellspan, 2/26/21, at 12-17. Movants argued that the notes did not fall under 

any recognized exception to the hearsay rule because: (1) the declarants, 

i.e., the doctors present at the meeting, did not review, approve, or adopt 

them; (2) the notes are not medical records falling under the business records 

exception, see Pa.R.E. 803(6); and (3) they are not recorded recollections 

under Pa.R.E. 803.1(3), which recognizes an exception for “[a] memorandum 

or record made or adopted by a declarant-witness,” as the witness—Stiffler—

is not the declarant. See Omnibus Motion in Limine of Dr. Wright and 

Wellspan, 2/26/21, at ¶¶ 60-63. The trial court granted the motion and 
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precluded all reference to the tumor board notes at trial. See Trial Court 

Order, 3/17/21, at 2 (unpaginated). 

Smith argues that the notes are relevant to impeach the testimony of 

witnesses who were present at the tumor board meeting and who all recalled 

that there had been agreement as to the correctness of Decedent’s diagnosis

of adenocarcinoma. Smith alleges that Stiffler’s notes “clearly indicate that 

the pathology diagnosis was not definitive, and that the tumor board 

expressed a need for additional pathology stains to identify the tumor.” Brief 

of Appellant, at 65. Smith asserts that the notes are admissible as both a 

recorded recollection under Rule 803.1(3) and a business record, pursuant to 

Rule 803(6).

Appellees respond that the tumor board notes: (1) are not relevant to 

any issue at trial; (2) constitute hearsay within hearsay; and (3) do not fall 

under any exception to the hearsay rule. With regard to relevancy, Appellees 

cite Smith’s own motion in limine, in which he sought to preclude “evidence, 

argument and/or testimony concerning the York Hospital tumor board’s 

discussion of, findings[,] and/or recommendation regarding [Decedent’s case] 

at trial.” Plaintiff’s Omnibus Motion in Limine, 9/13/21, at 13 (unpaginated) 

(unnecessary capitalization omitted). In his motion in limine, Smith argued 

that any “testimony, evidence[,] and/or argument [related to the tumor board 

meeting] would be irrelevant, misleading, and unfairly prejudicial and should, 

therefore, be precluded.” Id. Smith further stated:
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[] Plaintiff will not be introducing evidence, argument[,] and/or 

testimony regarding the tumor board at trial. Information 

regarding the tumor board was relevant to Plaintiff’s corporate 

negligence claim against York Hospital. That claim was resolved 

at the arbitration; hence, information about the tumor board is 

now irrelevant to the case.

Id. at 14 (unpaginated) (unnecessary capitalization omitted). Appellees 

argue that, based on the Smith’s own representations, “the tumor board notes 

were irrelevant at trial in this matter, and never related to any claim asserted 

against Dr. Kannarkatt.” Brief of Appellees, at 44 (unnecessary capitalization 

omitted). Accordingly, Appellees argue that the trial court properly excluded 

them. 

We agree with Appellees that Smith’s prior (and successful) advocacy

before the trial court to exclude evidence related to the tumor board meeting 

precludes him from now arguing that the trial court erred in doing exactly 

what Smith requested. By order filed September 24, 2021, the court 

granted, in part, and denied, in part, Smith’s motion in limine regarding tumor 

board evidence. In denying Smith’s motion, in part, the court allowed the 

introduction of tumor board evidence only to the extent that “such information 

[] was actually communicated to Dr. Kannarkatt by someone with personal 

knowledge of the discussion of, finding[s,] and/or recommendation[s]” from 

the tumor board. Trial Court Order, 9/24/21, at 2 (unpaginated). In all other 

respects, the court granted Smith’s motion, excluding “[a]ll other evidence, 

argument[,] and/or testimony regarding the [tumor board’s] discussion of, 

findings[,] and/or recommendation regarding Decedent[.]” Id. Smith now 
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seeks a reversal of the very decision he advocated for in the trial court. This 

he may not do. This Court has declared that litigants “will not be permitted 

to ‘blow hot and cold’ by now taking a position [on appeal] inconsistent with 

that by which he previously induced the trial court to act[.]” Reese v. Reese, 

506 A.2d 471, 474 (Pa. Super. 1986). Accordingly, the trial court did not err 

in excluding the tumor board notes.

Judgment vacated. Case remanded for new trial. Jurisdiction 

relinquished. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 03/11/2024