Outpatient Hospital Radiology Is “Discrete and Complete” for Continuous-Treatment Tolling; Conclusory Expert Proof Defeats Hospital Summary Judgment

1. Introduction

Hidalgo v Darakchiev (2026 NY Slip Op 04183 [App Div 2d Dept July 1, 2026]) arises from spine surgery and follow-up care involving (i) the treating neurosurgeon, Borimir Darakchiev, and (ii) Good Samaritan Hospital Medical Center (the “hospital”). Plaintiff Mary Hidalgo (the “injured plaintiff”) underwent a lumbar decompressive laminectomy and fusion at the hospital on April 10, 2013. Postoperative complications led to two exploratory surgeries to repair dural defects (April 16, 2013 and May 2013). After discharge, Darakchiev followed her in his private office and periodically ordered outpatient MRIs performed at the hospital (July 2013 through May 16, 2014).

The action, commenced November 15, 2016, asserted medical malpractice (and derivative loss of consortium) against Darakchiev and the hospital, and also alleged negligent hiring against the hospital. The key appellate issues were:

  • Surgeon summary judgment: whether plaintiffs raised a triable issue of malpractice/causation, including a theory first articulated in opposition.
  • Hospital summary judgment (limitations): whether claims were time-barred and whether the continuous treatment doctrine tolled the statute based on outpatient imaging at the hospital.
  • Hospital summary judgment (merits for May 16, 2014 care): whether the hospital’s expert proof was sufficient to obtain dismissal as to the last imaging date within the limitations period.
  • Negligent hiring: whether it can proceed where the hospital conceded conduct occurred within the scope of employment.

2. Summary of the Opinion

The Second Department modified the order.

  • As to Darakchiev: The court affirmed denial of his motion for summary judgment. Although he made a prima facie showing through expert opinion, plaintiffs raised a triable issue via expert affirmations suggesting pedicle screw misplacement and iatrogenic dural tears. The court allowed plaintiffs’ “misplaced hardware caused dural tears” theory because it was referenced in deposition questioning and thus was sufficiently tethered to the pleadings.
  • As to the hospital—limitations: The court affirmed dismissal of malpractice-based claims for acts before May 16, 2014 as untimely, rejecting tolling under the continuous treatment doctrine. The outpatient imaging was “discrete and complete,” with no ongoing treatment relationship anticipated between patient and hospital.
  • As to the hospital—May 16, 2014 imaging: The court reversed summary judgment to the hospital for acts after May 15, 2014, holding the hospital failed to meet its prima facie burden because its expert opinion about outpatient radiology was conclusory. Under settled summary judgment principles, that failure required denial “regardless of the sufficiency of the plaintiffs’ opposition papers.”
  • Negligent hiring: The court affirmed dismissal; respondeat superior displaced negligent hiring/retention theories absent a viable punitive-damages/gross-negligence exception.

3. Analysis

A. Precedents Cited

1) Summary judgment framework in medical malpractice cases

  • M.T. v Lim and Rodriguez v Avshalumov: Cited for the baseline rule that a defendant physician moving for summary judgment must show either no departure from accepted practice or no proximate causation. These cases anchor the court’s finding that Darakchiev met the initial burden through an expert affirmation addressing standard of care and causation.
  • Donohue v Grossman (quoting Martinez v Orange Regional Med. Ctr.): Used to emphasize that the moving defendant must specifically address and rebut the malpractice allegations pleaded (complaint/bill of particulars), framing the inquiry into whether Darakchiev’s submission was responsive enough to shift the burden.
  • Walker v Jamaica Hosp. Med. Ctr., Palagye v Loulmet, and Pirri-Logan v Pearl: Reiterate that conflicting competent expert opinions typically create triable issues precluding summary judgment. The court relied on this principle to hold plaintiffs’ radiology and neurosurgery experts created a factual dispute over hardware placement, deviation, and causal mechanism of dural tears.

2) “New theory” limits on opposition to summary judgment

  • Rich v Donnenfeld (quoting Larcy v Kamler): Supplies the general bar against raising a new or materially different theory for the first time in opposition to summary judgment. The court applied the companion rule from these cases: a theory may be considered if “discernable from the pleadings,” especially if referenced in deposition testimony.
  • Palagye v Loulmet (also cited on this point): Reinforces the flexibility where the record (including deposition exchanges) puts the defendant on notice of the theory.
  • Valerio v Chaudhry and Walker v Jamaica Hosp. Med. Ctr.: Support the court’s conclusion that deposition references can cure the “new theory” problem. Here, plaintiffs’ counsel referenced the misplaced-hardware concept during Darakchiev’s deposition, allowing the theory to be considered at summary judgment.

3) Statute of limitations and continuous treatment doctrine—diagnosticians/radiology

  • Rhodes v Van Valkenburg and Cole v Richard G. Karanfilian, M.D., P.C.: Cited for the two-years-and-six-months malpractice limitations period and for rejecting continuous-treatment tolling where the doctrine’s elements are not met. The hospital used these precedents to show most alleged acts fell outside the limitations window.
  • Cole v Richard G. Karanfilian, M.D., P.C. (quoting Kaufmann v Fulop) with references to McDermott v Torre and Elkin v Goodman: These cases provide the decision’s core doctrinal rule: continuous treatment “in general” does not apply to diagnosticians (including radiologists) providing discrete, intermittent services unless there is a continuing relationship with the patient or diagnostician acts as an agent/associate of the treating physician in a way relevant to continuous treatment. Applying this line, the court treated the hospital’s outpatient MRIs as “discrete and complete” post-discharge services.
  • Ruane v Niagara Falls Mem. Med. Ctr. and McDermott v Torre: Cited to underscore that a “relevant association” is required before a facility/diagnostician is swept into a continuous course of treatment driven by another physician. The court found no evidence that the hospital acted in relevant association with Darakchiev for continuous-treatment purposes.

4) Alternative grounds for affirmance

  • Parochial Bus Sys. v Board of Educ. of City of N.Y.: Invoked to note the appellate court may affirm on an alternative ground raised below. The hospital attempted to defend dismissal of the May 16, 2014 claim by arguing plaintiffs improperly raised negligent misinterpretation for the first time in opposition. The court’s discussion signals that, given the pleadings’ breadth (failure to assess diagnostic results; negligence on each date of evaluation), this “new theory” argument was not dispositive.

5) Conclusory expert affidavits and the movant’s prima facie burden

  • In v Maimonides Med. Ctr. (quoting Buzeska v Crystal Run Healthcare Physicians, LLP): Supplies the rule that an expert affirmation that merely recites care rendered and offers a conclusory “no departure” opinion is insufficient for summary judgment. The court used this to hold the hospital did not meet its prima facie burden as to acts after May 15, 2014.
  • Winegrad v New York Univ. Med. Ctr.: Cited for the strict procedural consequence: if the movant fails to meet its prima facie burden, the motion must be denied regardless of the opponent’s papers. This is what compelled reversal for the May 16, 2014-related claims.

6) Negligent hiring/supervision vs. respondeat superior

  • Garcia v Hollander (quoting Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation) and Talavera v Arbit: Establish the general rule that when an employee acts within the scope of employment, respondeat superior is the exclusive route and negligent hiring/retention/supervision claims are barred. The court applied this to dismiss the hospital’s negligent hiring claim.
  • S.W. v Catskill Regional Med. Ctr. (quoting Talavera v Arbit): Provides the narrow exception: negligent hiring/retention may proceed where plaintiff seeks punitive damages based on the employer’s gross negligence in hiring/retention. The court found plaintiffs did not raise a triable issue fitting this exception.

B. Legal Reasoning

1) Why Darakchiev did not obtain dismissal

The court followed the familiar burden-shifting sequence. Darakchiev’s expert affirmation met the initial requirement by stating (i) no departure and (ii) no proximate cause. Plaintiffs then countered with two complementary expert opinions: a radiologist who interpreted imaging as showing pedicle screw misplacement, and a neurosurgeon who linked misplacement to deviation and to iatrogenic dural tears.

The pivotal procedural point was the court’s treatment of plaintiffs’ “misplaced hardware caused dural tears” theory. Even though the theory was not expressly spelled out in the complaint/bill of particulars, it was referenced during Darakchiev’s deposition. That deposition notice, combined with the pleadings’ general malpractice allegations, was enough under the cited “discernable from the pleadings/deposition” line to allow consideration. Once considered, the competing experts created a classic credibility-and-weight dispute for a jury, not summary judgment.

2) Why most hospital claims were time-barred (and why outpatient MRIs did not toll)

The hospital established that, except for the May 16, 2014 outpatient MRI, the alleged malpractice occurred more than two years and six months before suit was filed. Plaintiffs attempted to invoke continuous treatment to extend the accrual date, arguing that follow-up imaging was part of a continuing course ending May 23, 2014.

The court rejected that tolling theory as to the hospital because the outpatient radiology appointments were: (i) scheduled based on Darakchiev’s orders for his office follow-ups, (ii) interpreted without treatment recommendations, and (iii) independently analyzed by Darakchiev. Critically, there was “no indication” of an anticipated ongoing treatment relationship between the patient and the hospital. Under the diagnostician/radiologist precedents, these were “discrete and complete” services, not a continuous course of treatment. The court also found no evidence of the type of “relevant association” that would make the hospital part of a continuous treatment relationship led by Darakchiev.

3) Why the hospital still lost summary judgment for the May 16, 2014-related claim

Although the court rejected continuous-treatment tolling, it recognized that the May 16, 2014 imaging fell within the limitations period and therefore remained potentially actionable. The hospital attempted to defeat that remaining claim on the merits at summary judgment.

The court held the hospital’s expert discussion of outpatient imaging was conclusory—i.e., it did not provide a substantive, reasoned explanation demonstrating no departure (or no causation) tied to the specific allegation that the diagnostic results were not properly assessed. Under In v Maimonides Med. Ctr. and Buzeska v Crystal Run Healthcare Physicians, LLP, such conclusory proof cannot carry the movant’s prima facie burden. Under Winegrad v New York Univ. Med. Ctr., that failure required denial irrespective of plaintiffs’ opposition.

4) Why negligent hiring was dismissed

The court treated negligent hiring/retention/supervision as duplicative once the hospital established the challenged acts were within the scope of employees’ employment, making respondeat superior the governing theory. Plaintiffs did not fit the punitive-damages/gross-negligence exception recognized in S.W. v Catskill Regional Med. Ctr..

C. Impact

  • Sharper limits on continuous-treatment tolling for facility-based outpatient imaging: The decision reinforces that repeated outpatient imaging at a hospital, ordered by an outside treating physician for follow-up visits in private practice, is likely “discrete and complete” and does not, without more, create a continuous treatment relationship with the hospital. Plaintiffs seeking tolling will need evidence of an anticipated ongoing hospital-patient treatment relationship or a qualifying agency/association with the treating physician.
  • Deposition notice can preserve theories not crisply pleaded: Hidalgo highlights a practical pathway for plaintiffs to defend against summary judgment where expert review uncovers a more specific mechanism of injury: if the theory is sufficiently foreshadowed in discovery (notably depositions), courts may deem it “discernable” and consider it. Defendants, conversely, should treat deposition questioning as a signal to address emerging theories in their moving papers.
  • Hospitals must submit nonconclusory expert proof even on seemingly narrow diagnostic claims: The ruling is a reminder that a hospital cannot win summary judgment with a “chart recap + conclusory no-departure statement.” Especially for radiology-based claims, an affidavit should explain interpretive standards, what was seen, differential considerations, reporting duties, and causation logic.
  • Negligent hiring remains difficult absent punitive-damages-grade facts: The decision continues the Second Department’s strict approach: if scope of employment is established, negligent hiring claims are typically out unless plaintiffs can support the gross-negligence/punitive damages exception.

4. Complex Concepts Simplified

  • Summary judgment (medical malpractice): A pretrial ruling granted only if there is no triable factual dispute. In malpractice, defendants usually rely on expert affirmations to show no deviation or no causation. If plaintiffs counter with a qualified expert who disagrees on material points, the case usually goes to a jury.
  • Prima facie burden: The movant must “go first” with enough evidence to win as a matter of law. If that showing is inadequate, the motion fails even if the opponent’s response is weak.
  • Continuous treatment doctrine: A tolling rule that can delay the start of the limitations period until a continuous course of treatment for the same condition ends. For diagnosticians like radiologists, repeated tests are not automatically “continuous treatment”; they are often viewed as separate, completed events unless tied to an ongoing treatment relationship or agency.
  • “Discrete and complete” diagnostic services: A way courts describe stand-alone imaging/interpretation encounters—each appointment is a finished service, not an ongoing therapeutic relationship.
  • Respondeat superior vs. negligent hiring: If an employee was acting within the scope of employment, the employer is usually liable through respondeat superior; a separate negligent hiring claim is generally barred unless punitive-damages-level hiring/retention misconduct is plausibly shown.
  • New theory in opposition: Plaintiffs generally cannot ambush a defendant at summary judgment with an entirely new malpractice theory. But if the theory is reasonably inferable from pleadings and the discovery record (including depositions), courts may consider it.

5. Conclusion

Hidalgo v Darakchiev delivers two practice-defining lessons. First, it tightens the application of the continuous treatment doctrine to post-discharge outpatient radiology: repeated hospital MRIs ordered by a private physician, without an anticipated ongoing treatment relationship or relevant association, are treated as “discrete and complete” and do not toll limitations against the hospital. Second, it underscores that hospitals (and all malpractice defendants) must win summary judgment with substantive expert reasoning—not conclusory assurances— and that failure to meet the prima facie burden is fatal under controlling summary judgment doctrine. The decision also confirms that deposition-developed theories may be considered at summary judgment and reiterates the limited role of negligent hiring claims where scope of employment is undisputed.