Unanimous justices hold that expert testimony met the relaxed “increased risk of harm” causation standard of Hamil v. Bashline, sending the wrongful-death case back for a new trial.
The Pennsylvania Supreme Court on Oct. 29 unanimously affirmed a ruling granting a new trial in a medical malpractice case against a York oncologist, holding that the plaintiffs presented sufficient expert evidence to allow a jury to consider whether the doctor’s alleged failure to question a pathologist’s breast cancer diagnosis increased the risk of harm to a patient who, it turned out, had a rare and aggressive lymphoma.
The 7-0 decision in Smith v. Kannarkatt, No. 17 MAP 2025, affirms a 2024 Superior Court ruling that vacated a compulsory nonsuit entered for Dr. Annie Kannarkatt and Cancer Care Associates of York, Inc., and sent the case back for a new trial. Justice Brobson wrote the opinion, joined by Chief Justice Todd and Justices Donohue, Dougherty, Wecht, Mundy and McCaffery.
The case turned on Hamil v. Bashline, a 1978 decision in which the court adopted Section 323(a) of the Restatement (Second) of Torts. Under that standard, a plaintiff may reach a jury on causation with expert testimony, given to a reasonable degree of medical certainty, that a defendant’s conduct increased the risk of the harm the patient actually suffered. The jury then decides whether the conduct was a substantial factor in causing that harm.
According to the opinion, Tanya Smith had an enlarged lymph node biopsied at WellSpan York Hospital in March 2017. A hospital pathologist reported metastatic adenocarcinoma “compatible with breast origin.” The plaintiffs’ standard-of-care expert later testified that the wording indicated the pathologist had not made a definitive diagnosis. Follow-up imaging, including a CT scan, PET scan, mammogram and ultrasound, found no primary tumor, and the CT and PET results listed lymphoma as a possible alternative diagnosis.
Kannarkatt began treating Smith on March 21, 2017. The opinion states that she had access to the conflicting records but, without further investigation, treated Smith for breast cancer with chemotherapy and radiation. In March 2018, a biopsy following gallbladder removal led to a revised diagnosis of ALK positive large B-cell lymphoma, and a reexamination showed the 2017 tissue samples were identical. Smith then received lymphoma-directed chemotherapy and a stem cell transplant at Milton S. Hershey Medical Center. She died on Jan. 6, 2019.
Smith and her husband, Marvin Smith, who has also since died, sued in the York County Court of Common Pleas. A first trial in October 2021 ended in a mistrial after the jury deadlocked. During a second trial in April 2022, the trial court granted a compulsory nonsuit after the plaintiffs rested, finding insufficient evidence of causation.
The plaintiffs’ standard-of-care expert, oncologist Dr. Gerald Goldklang, testified that pathologists “are not infallible” and that, given the inconsistent clinical and imaging findings, a reasonable oncologist should have contacted pathology and pushed for a reevaluation. Causation expert Dr. Robert Soiffer testified, to a reasonable degree of medical certainty, that the roughly 13-month delay in correct diagnosis and treatment deprived Smith of “a substantially better opportunity for a longer life.” He explained that the lymphoma spread and became harder to treat during that period while the breast cancer chemotherapy weakened her. On cross-examination, he acknowledged he could not predict what her survival would have been.
Kannarkatt and Cancer Care Associates argued that the pathology misdiagnosis was the actual cause of the delay, that Kannarkatt had no control over it, and that nothing in the record showed a call to the pathologist would have changed the outcome. They also noted that Smith lived roughly 21 to 22 months, consistent with or longer than survival figures in the medical literature, and warned that the ruling sought by the plaintiffs “would eliminate any trust among providers.” The Hospital and Healthsystem Association of Pennsylvania, the American Medical Association and the Pennsylvania Medical Society filed amicus briefs supporting the defendants. The Pennsylvania Association for Justice supported the plaintiffs.
The court found those arguments rested largely on a selective reading of the record or went to the weight and credibility of the evidence rather than its sufficiency. “Appellants’ arguments illustrate the necessity of the relaxed causation standard,” the court wrote, adding that it is “impossible to know” what would have happened had Kannarkatt contacted the pathologist. Under Hamil, the plaintiffs did not need to prove that such a call would have changed the diagnosis or outcome.
The justices said a jury may weigh Kannarkatt’s conduct alongside other factors, including the pathologist’s conduct and the underlying cancer. In a footnote, the court said any request to abrogate or modify Hamil fell outside the question it agreed to review.
The court also distinguished Montgomery v. South Philadelphia Medical Group, Inc., a 1995 Superior Court decision upholding a nonsuit. There, the plaintiff’s expert described any increased risk only as possible and conceded it was speculative, and the patient recovered. Here, the court said, the causation opinion was offered with reasonable medical certainty, the cancer spread considerably during the delay, and the patient died.
The ruling does not find that Kannarkatt was negligent. Because the appeal arose from a nonsuit, the court viewed the evidence in the light most favorable to the plaintiffs and stressed that a jury is under no obligation to accept their evidence. The defendants remain free to cross-examine the plaintiffs’ experts and offer their own testimony at the new trial.
Read the full opinion: Smith v. Kannarkatt, No. 17 MAP 2025 — Pennsylvania Supreme Court Opinion (Oct. 29, 2026)
By The Trial Attorneys Editorial Staff
The information contained in this publication is provided for general informational and educational purposes only and is not intended to constitute legal advice, nor should it be relied upon as such.
