J

- A16044

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT OP 65.37

KELLY A. VELESARIS & DEMETRIOS

C. VELESARIS

Appellants

v.

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 :

:

:

:

:

:

:

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1602 MDA 2022

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.: FIL ED : AUGUST 15, 2023

In this medi c al malpractice action , Kelly A. Velesaris and her husband,

Demetrios C. Velesaris (collectively, Appellant s ) 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 (coll ectively, 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 Fin al Order, 10/12/22 , at 1

- 2.J

- A16044

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- 2

-

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 ¶ ¶ 1 3

- 1 5

. 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 a n

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 o f

architectural distortion observed to suggest m alignancy. [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 S a maritan 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 .”J

- A16044

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- 3

-

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 Novembe r 14, 2016, for a

mammogram screening. This time

, Jennifer Kegel, M.D. interpreted th e 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 we n t 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 suggest ive 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 “underwe nt a bilateral mastectomy and a left

axillary sentinel lymph node biopsy ” at Hershey. Appellants’ Complaint at ¶J

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- 4

-

22. “The results of the l ymph 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 micromet astic 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 Aug ust 9, 2018, Appellants filed a complaint against Dr. Leontiev

,

and other entities, 6 alleg ing 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 br east 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 Omni bus Motion in Limine of Defendants, Oleg Keontiev,

M.D. and Leb anon Imaging Associates, P.C., Challenging Expert Evidence,

9/8/22, at Exhibit “A” ( Oral Deposi tion 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 Well S pan Good Samaritan Hospital (Good Samaritan)

, and

WellSpan H ealth (Well Span) as defendants. Good Samaritan and W ellSpan

w ere 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.J

- A16044

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- 5

-

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

- con serving,

less radical options . The delayed diagnosis also diminished

[Kelly]’s chances of achieving a complete cure.

28. As conse quence 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 testi fy 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

inc reasing 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 stipulatio n by the parties

.J

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- 6

-

failure to perform biopsy for histologic diagnosis. The

misinterpretation of the mammograms from 10/25/2014 and

10/27/2015 fell outsid e 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 mamm ograms, [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 stag e 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 al lowed 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. For man’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 opt ions. She chose from that menu. If the

cancer had been diagnosed earlier , it is reasonabl e 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. L eontiev filed a motion in limine

, asserting

Appellants’ proposed experts, Dr. Butler and Dr. Forman

, were “ not qualifiedJ

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- 7

-

to present opinions on causation in th is 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. Leonti ev 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

fol low an oncology patient.” Id. Rather, the radi ologist “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 :

T he 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 psy chiatry 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. LeontievJ

- A16044

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- 8

-

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 address ed

multiple motions, including Dr. Leontiev’s motion in limine regarding

Appellants’ experts. The order stated, in per tinent 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 pro hibited

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 di agnosis 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, Appellant s’ 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 separ ate 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.J

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- 9

-

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 1 2 , 2022,

which granted summary judgment in favor of Dr. Leontiev and directed the

prothonotary to enter final judgment in this matter. See Final Order,

10/1 2 /22, at 1

- 2. Appellants filed a timely notice of appeal. 9

Appellant s 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 qua lified

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 A ppellants were precluded

from offering expert opinions regarding medical causation and an increased

risk of har m, 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 Appellant s 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.J

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- 10

-

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 o mitted). 11

Moreover, o ur 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 pr ejudicial 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 matte r 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).J

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- 11

-

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 m ight 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 exper t 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 ave rage 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 provideJ

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- 12

-

credible, competent testimony and fulfills the additional

qualifications set forth in this section as applica ble.

(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 s econd, 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 relationshi p 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,J

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- 13

-

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

R estatement of Torts 2d

, 13 ] it follows that where medical

causation is a factor in a case coming within that Section, it

_________________ __________ ______ ____ _______

12 F urthermore, 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. S

piegel

, 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).J

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- 14

- 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 p laintiff ’ 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

unfortun ately 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 b ringing 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 th e 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.J

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- 15

-

In their first argument, Appellants complain the court erred in not

permit ting 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, t hey 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

f ro m 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 an d

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 increaseJ

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- 16

-

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

d isciplinary task group at the Smilow Breast Cancer Center. From

2013 through 2016, she was the Yale Site Pri n cipal Investi gator

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 im aging and treatment. [Appellants] argued that

her 24 years of experience working as part of a multi

- disciplin ary

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]

argu ed 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 wasJ

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- 17

-

managed and followed by oncologists. After reviewing Dr. Butler’s

Cur riculum Vitae and her deposition, we agreed with [Dr.

Leontiev] that, al though 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 th e 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

i n 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 t he 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 w orking 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 part icipation in the

multi disciplinary team as follows:

Ultimate Opinions in Medicine Panelist

– national multi

discip linary 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 anony mized cases.J

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- 18

- While we acknowledge Dr. Butler’s inclusion in a team of

specialists who deal with cancer treatment, th ere 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 foll owing 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 re sult of Dr. Leontiev’s purported

negligent actions, she had to undergo double mastectomies, chemothe rapy,

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

.J

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- 19

-

Dr. Butler’s background demonstrates that as a radiologist

, she is

concern ed 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 dia gnosis of breast cancer in general terms .”

Appellants’ Brief in Opp osition to Dr. Leontiev’s Motion in Limine Challenging

App e llants’ 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 opin ion 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, Appellant s 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 depositio n, 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)

.J

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- 20

-

We now turn to the cases Appellants rel ied on, Tong

- Sommerford and

McFeeley

, in their appellate argument

. In Tong

- Sommerford

, the plaintiff

decedent died after a feeding tube that wa s supposed to be inserted into his

stomach was improperly placed into his lung by a hospital radiologist. T he

d efendant

- 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.

T he matter proceeded to a jury trial

, where the de cedent’s expert was

qualified to testify about increased risk of harm but not causation. Id. at 647.

T he 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 defendant s

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 th e 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 testi mony pertaining to internal medicine and

forensic pathology.

. . .J

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- 21

-

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 incre ased 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 acknowled gment 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, un dermined his earlier statements at trial concerning [the

defendant

- doctor’s] failure to order another radiology study.” Id. at 648.

Contra ry 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 w ould be calling Dr. Butler

as a caus ation 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 sheJ

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- 22

-

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, i n 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 diagno sis and

treatment increased the risk of harm to the plaintiff. Id. One of the plaintiff’s

argument s 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 th e MCARE Act standard .” Id. at 59 7

.

A panel of this Court concluded “the t rial 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 di scretion 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).J

- A16044

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- 23

-

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 diagnos is of cancer at an earlier stage increased the risk of harm

that the decedent would suffer a perforation. Moreover, we point out th at t he

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

i n 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 negligen ce. 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

- di agnosis.J

- A16044

- 23

- 24

-

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

h er 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 ).

T he trial court explained its rationale for precluding Dr. Forman as

follows:

Although [Dr. Forman] was identif ied 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 aspe ct of Dr.

Forman’s opinion in the Omnibus Motion in Limine. We agreedJ

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- 25

-

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 b ackground 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. Thu s, we precluded

his testimony on that issue.

Trial Ct. Op. at 10. We agree with the trial court’s rationale while adding the se

additional comments.

As Dr. Leontiev points out, he “never challenged Dr. Forman’s

competency to render causation opinions rel ated 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 emotion al

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 emotionall y 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. SeeJ

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- 26

-

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, t he 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 wouldJ

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- 27

-

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, Ap pellants’ second argument is unavailing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/1 5/2023