Introduction

In Garcia v. Hollander, the Appellate Division, Second Department, delivered a multifaceted decision addressing several recurring issues in New York medical malpractice litigation: the standards governing summary judgment in malpractice cases with competing expert affidavits, the viability of negligent hiring/supervision claims where an employer admits vicarious liability, the proper contours of lack-of-informed-consent claims for routine examinations, and the causation requirements for vicarious liability tied to a nonparty clinician’s one-time encounter.

The plaintiff, Minerva Garcia, received gastrointestinal care from a gastroenterologist (Alfred C. Hollander, M.D.) and a nurse practitioner (Deborha M. Caputo) employed by Digestive Disease Associates of Rockland, P.C. (“Digestive Disease”), and contemporaneous gynecologic care from a nurse practitioner (Tara A. Scaglione) employed by Comprehensive Obstetrics & Gynecology, P.C. (“COG”), later absorbed by Crystal Run Healthcare, LLP (“Crystal Run”). In January 2016, Garcia was diagnosed with Stage IIIB/IV metastatic anal cancer. She alleged that the defendants’ failures to properly identify symptoms and to timely perform appropriate examinations—particularly digital rectal exams—caused a substantial delay in diagnosis and a worsened outcome.

Separate summary judgment motions by the gastrointestinal (“G.I.”) defendants and the OB/GYN defendants culminated in an order largely denying dismissal. On appeal, the Second Department modified that order in significant respects, sharpening several doctrinal points that will guide future malpractice litigation.

Summary of the Judgment

The Second Department’s order does four principal things:

• Affirms denial of summary judgment on the core medical malpractice claims against Hollander (gastroenterologist), Caputo (G.I. nurse practitioner), and Scaglione (OB/GYN nurse practitioner), finding triable issues of fact—especially regarding the alleged failures to perform proper digital rectal exams and the causal link to delayed diagnosis.
• Dismisses negligent hiring and supervision claims against the corporate entities (Digestive Disease, COG, and Crystal Run) as duplicative where the employees acted within the scope of employment and no punitive damages were pursued. The court also dismisses that claim as to Scaglione personally due to a lack of supporting allegations in the bill of particulars.
• Allows a negligent hiring/supervision theory to proceed against Hollander individually (as a potential supervisor of others), because the G.I. defendants did not establish his entitlement to judgment as a matter of law on that claim.
• Dismisses the lack-of-informed-consent claim against the OB/GYN defendants, holding that routine digital rectal examinations—presenting no risk of harm—do not trigger informed-consent liability. It also dismisses vicarious liability claims against Crystal Run and COG for the alleged negligence of nonparty clinician Sami Ahmad, finding no proximate causation from a single, late examination.

As modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Detailed Analysis

1) Precedents Cited and How They Shaped the Decision

• Santiago v Abramovici, 226 AD3d 720 and Williams v Nanda, 177 AD3d 938: These cases underscore the two-step summary judgment framework in medical malpractice: a defendant must first establish no departure from accepted practice or no proximate cause; if met, the burden shifts to the plaintiff to raise triable issues. They also reaffirm that conflicting, well-founded expert opinions typically preclude summary judgment. Garcia invokes Santiago repeatedly to support denial of summary judgment where competing experts dispute departures and causation.
• Lopresti v Alzoobaee, 217 AD3d 759; Stewart v North Shore Univ. Hosp. at Syosset, 204 AD3d 858; DiGiaro v Agrawal, 41 AD3d 764: These authorities support that delayed-diagnosis claims, often turning on whether examinations were properly performed and symptoms appropriately pursued, are frequently fact-intensive and ill-suited for resolution on summary judgment when the parties offer competing expert narratives. Garcia applies these decisions to keep malpractice claims against the nurse practitioners and physician alive.
• Ruggiero v Miles, 125 AD3d 1216: Cited in rejecting the G.I. defendants’ bid to dismiss a negligent hiring/supervision claim against Hollander, this case supports the proposition that an individual who has supervisory responsibilities can face a direct negligent supervision claim distinct from corporate negligent hiring/retention theories. In Garcia, the record did not eliminate possible supervisory fault attributable to Hollander.
• Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 147 AD3d 739; Talavera v Arbit, 18 AD3d 738; Simpson v Edghill, 169 AD3d 737: These decisions articulate the well-settled rule: where an employee is acting within the scope of employment, the employer’s liability flows via respondeat superior; stand-alone negligent hiring/retention/supervision claims are then typically duplicative and barred—unless punitive damages are sought for gross negligence in hiring/retention. Garcia applies this rule to dismiss negligent hiring/supervision claims against Digestive Disease, COG, and Crystal Run.
• Winegrad v New York Univ. Med. Ctr., 64 NY2d 851: The classic statement that if the movant fails to make a prima facie showing, summary judgment must be denied regardless of the sufficiency of the opposition. Garcia uses Winegrad to sustain denial of summary judgment against Caputo and Scaglione where movants did not eliminate all triable issues.
• Ciceron v Gulmatico, 220 AD3d 732; Hiegel v Orange Regional Med. Ctr., 219 AD3d 910; Bongiovanni v Cavagnuolo, 138 AD3d 12: These authorities further reinforce that adequacy of physical examinations and diagnostic workups—here, digital rectal examinations—often present factual disputes necessitating trial, especially regarding causation in delayed-diagnosis cases.
• Macancela v Wyckoff Hgts. Med. Ctr., 176 AD3d 795: Supports dismissal of lack-of-informed-consent claims where the only “procedure” is a routine exam without recognized risk of harm. Garcia applies this to digital rectal examinations reported by Caputo and Scaglione as presenting no risk to the plaintiff.
• Kelly v Gonzalez-Torres, 219 AD3d 711: Affirms that absent proximate causation, a provider’s limited encounter cannot sustain liability. Garcia cites Kelly to dismiss vicarious liability claims tied to nonparty Sami Ahmad’s single January 25, 2016 encounter, finding no causal link to the alleged diagnostic delay and injuries.
• S.W. v Catskill Regional Med. Ctr., 211 AD3d 890: Confirms that unopposed summary judgment branches may be granted where movants make a prima facie showing. Garcia uses S.W. to note the plaintiff’s failure to oppose certain branches, sealing dismissal on those points.

2) The Court’s Legal Reasoning

a) Summary Judgment Standards in Medical Malpractice

The court faithfully applied the two-stage summary judgment standard. The defendants bore the initial burden to demonstrate either no departure from accepted practice or no proximate cause. Only if they carried that burden would the onus shift to the plaintiff to produce expert evidence creating triable issues. In multiple respects, defendants fell short or were met with credible counter-expert affirmations, leading to the denial of summary judgment on the central malpractice claims. This is classic “battle of the experts” terrain where juries, not judges, should resolve the factual disputes.

b) Malpractice Claims Against Individual Clinicians

The court highlighted triable issues regarding whether Hollander and Caputo (G.I. practice) and Scaglione (OB/GYN practice) departed from accepted standards by failing to timely and properly perform digital rectal examinations in the relevant period and whether those deviations contributed to delayed diagnosis and plaintiff’s injuries. The plaintiff’s expert affirmation sufficed to raise questions of departure and causation, referencing the framework in Santiago and related cases.

c) Negligent Hiring, Retention, and Supervision

• Corporate defendants (Digestive Disease, COG, Crystal Run): The court dismissed negligent hiring/retention/supervision claims as duplicative because the employees were acting within the scope of employment and the plaintiff did not pursue punitive damages for gross negligence in hiring or retention. Under Henry/Talavera/Simpson, an employer who concedes respondeat superior liability cannot simultaneously face a separate negligent hiring/retention/supervision claim unless punitive damages are in play. Nevertheless, those corporate defendants remain potentially vicariously liable for their employees’ malpractice under respondeat superior.
• Individual defendant (Scaglione): Dismissal was also warranted because the plaintiff’s bill of particulars contained no allegations supporting negligent hiring/supervision against her personally. The bill of particulars frames the issues; its omission was dispositive.
• Individual defendant (Hollander): By contrast, the negligent hiring/supervision claim survives against Hollander personally. The G.I. defendants did not carry their prima facie burden to eliminate this theory—potentially premised on his supervising role—so the claim proceeds. This is a salient nuance: dismissal of corporate negligent hiring claims under respondeat superior does not automatically extinguish a distinct, direct negligent supervision claim against a clinician who independently owed and breached supervisory duties.

d) Lack of Informed Consent

The court dismissed the informed-consent claim against the OB/GYN defendants because the only “procedure” at issue was the performance of regular digital rectal examinations, which, according to the record, presented no risks to the plaintiff. Under New York law (as articulated in decisions like Macancela and grounded in Public Health Law § 2805-d), informed-consent liability is generally limited to non-emergency treatments or procedures that entail invasions of the body or present material risks of harm. Routine, risk-free physical examinations do not qualify. Attempts to reframe alleged diagnostic omissions as “lack of informed consent” typically fail, as happened here.

e) Vicarious Liability for a Nonparty Clinician

The court dismissed claims seeking to hold Crystal Run and COG vicariously liable for alleged malpractice by nonparty employee Sami Ahmad. The OB/GYN defendants made a prima facie showing that nothing Ahmad did during his one-time January 25, 2016 examination could have proximately caused the delayed diagnosis or the plaintiff’s injuries; the plaintiff did not raise a triable issue in response. This reinforces that vicarious liability—like direct malpractice—requires a concrete, causally connected act or omission; a late, isolated encounter that does not contribute to delay is not actionable.

3) Impact and Implications

• Corporate negligent hiring/supervision narrowed: Garcia reaffirms that when employees act within the scope of employment and punitive damages are not sought, negligent hiring/retention/supervision claims against employers will be dismissed as duplicative. Plaintiffs seeking to preserve such claims must carefully plead and support punitive damages or identify conduct outside the scope of employment.
• Supervisory liability of individual clinicians preserved: Distinctly, Garcia allows a negligent supervision claim against an individual physician to proceed where the record does not foreclose supervisory fault. This is an important tactical and doctrinal point: corporate duplicativeness doctrines do not eradicate personal supervisory negligence claims against clinicians who may have directed or overseen subordinates.
• Lack-of-informed-consent boundaries: Routine examinations without risk (e.g., digital rectal exams as described here) generally cannot support informed-consent claims. Plaintiffs must tether informed consent to procedures with material risk; defense counsel can move to dismiss consent claims that merely repackage diagnostic malpractice theories.
• Causation and one-off encounters: The decision confirms that a single, late encounter, absent a causal nexus to delay, cannot sustain liability. Plaintiffs must demonstrate how a particular visit caused additional delay or harm; defense motions that isolate the timeline can be effective.
• Expert-driven denials of summary judgment: In delayed-diagnosis suits, well-supported conflicting expert affidavits on standard of care and causation will commonly defeat defense summary judgment. Garcia fits squarely within that pattern.
• Procedural precision matters: The dismissal against Scaglione for lack of allegations in the bill of particulars is a reminder that New York practice places heavy weight on the bill to define theories and specifics. Plaintiffs must draft with care; defense counsel should scrutinize for omissions.

Complex Concepts Simplified

• Summary judgment: A pretrial ruling disposing of claims when there is no genuine dispute of material fact requiring a trial. The movant must first show entitlement to judgment; if not, the motion fails regardless of the opponent’s papers.
• Prima facie showing: The initial evidentiary showing a movant must make to shift the burden to the opponent—e.g., proof of no departure from accepted practice or no causation.
• Medical malpractice: A claim that a healthcare provider departed from accepted medical practice and that the departure proximately caused the patient’s injury.
• Negligent hiring/retention/supervision: Claims that an employer (or a supervisor) failed to use reasonable care in hiring, retaining, or overseeing staff, leading to injury. When an employer concedes an employee acted within the scope of employment, these claims are generally dismissed as duplicative of respondeat superior—unless punitive damages for grossly negligent hiring/retention are sought.
• Respondeat superior: A doctrine making employers vicariously liable for employees’ negligent acts committed within the scope of employment.
• Lack of informed consent: In New York, limited (under Public Health Law § 2805-d) to non-emergency treatments or procedures that involve bodily invasion or material risks of harm. It requires showing that an undisclosed risk materialized and that a reasonably prudent person would have declined the procedure if informed.
• Proximate cause: A legal cause sufficiently connected to the injury. In malpractice, the plaintiff must show the departure was a substantial factor in causing harm—e.g., that an earlier diagnosis was more likely than not to have improved the outcome.
• Bill of particulars: A pleading device that specifies the facts and theories underlying a claim. Omissions can be fatal to particular causes of action.

Conclusion

Garcia v. Hollander is a thorough, practical reaffirmation of several anchor doctrines in New York malpractice law, with two especially consequential clarifications. First, it reiterates that negligent hiring/retention/supervision claims against corporate healthcare defendants will be dismissed as duplicative where respondeat superior applies and punitive damages are not pursued—yet it simultaneously preserves the possibility of individual supervisory liability against a clinician whose own supervisory conduct is at issue. Second, it cabins lack-of-informed-consent liability, holding that routine digital rectal examinations—presented as risk-free in the record—do not fit the statutory framework for informed consent.

On the core malpractice issues, the ruling reflects the established pattern that competing expert affidavits on standard of care and causation typically preclude summary judgment—especially in delayed-diagnosis cases where the adequacy of examinations and follow-up are contested. The decision also demonstrates the centrality of proximate cause (dismissing vicarious liability tied to a nonparty’s one-time encounter) and the procedural importance of well-pleaded bills of particulars.

In short, Garcia will guide litigants and courts in structuring pleadings and motions: employers may streamline exposure to vicarious liability, plaintiffs must be precise in pairing theories to facts (and in seeking punitive damages where appropriate), and individual supervisors cannot assume corporate duplicativeness doctrines will insulate their own alleged supervisory negligence. The case thus refines, rather than rewrites, New York malpractice law—providing clear, practical guardrails for future litigation.