RICHARD HOLLYFIELD v. AMANDA TULLOS (2026)

Defendant-Relator, Amanda Tullos, M.D., (“Defendant”), seeks supervisory review of the trial court's February 26, 2026 judgment denying her motion for summary judgment. Pursuant to our de novo review, we grant Defendant's writ application in part and reverse the trial court's denial of Defendant's motion for summary judgment as it relates to Plaintiff's medical malpractice claim. However, we deny the writ as it relates to the remaining claim of intentional tort finding that the trial court properly denied summary judgment on that claim. Accordingly, we remand to the trial court for proceedings consistent with this writ opinion.

PROCEDURAL HISTORY

On November 5, 2018, Plaintiff-Respondent, Richard Hollyfield, (“Plaintiff”), an inmate at Elayn Hunt Correctional Center filed suit against Defendant regarding an incident that occurred on May 13, 2016 when he presented to the emergency room at University Medical Center in New Orleans, Louisiana, (“UMC”). Plaintiff alleged in his Petition that in April 2016, he had surgery to repair an inguinal hernia. A month later, he arrived at UMC complaining of post-operative pain and swelling in his groin and left testicle. Plaintiff alleged that after receiving an ultrasound in the emergency room, Defendant examined Plaintiff and purposefully squeezed and crushed his left testicle. As a result of this examination, Plaintiff alleged that he suffered continuous pain and permanent damage to his left testicle. He sought damages from Defendant based on her intentional and negligent conduct during the examination.

Prior to filing suit against Defendant, Plaintiff filed a request for a medical review panel on October 25, 2016. The panel rendered its decision on December 15, 2017.¹ Plaintiff initially filed his claims in federal court, however the suit was dismissed without prejudice on October 4, 2018. Shortly thereafter, he filed a Petition for Damages in the Civil District Court for the Parish of Orleans alleging medical malpractice and intentional tort. Defendant filed her motion for summary judgment on November 3, 2025, seeking dismissal of all of Plaintiff's claims.² Plaintiff filed an opposition to Defendant's motion for summary judgment in which he argued that expert testimony was not necessary to support an informed consent claim, as it is a question of fact.

Plaintiff relied on his deposition testimony in his opposition alleging that Defendant touched his testicles without his permission while he was restrained to the hospital bed. He reported that Defendant negligently grabbed and squeezed his left testicle causing pain so severe such that he was unable to speak. He testified that he used his free arm to try and remove Defendant's hands from his groin area and she responded by allegedly saying: “you can't f*** touch me!” He stated that Defendant grabbed and squeezed his testicle once more forcefully, slamming it down and pressing it onto the hospital bed causing him permanent injury and neuropathic pain.

After a hearing on February 12, 2026, the trial court entered judgment denying Defendant's motion for summary judgment. At the conclusion of the hearing, Defendant's counsel argued that summary judgment was proper “at the very least as to the medical malpractice claims because they cannot maintain the argument without an expert to testify as to causation given the allegations in plaintiff's petition for damages.” The trial judge responded, thusly:

The Court denies the state's motion for summary judgment. The intentional tort question fails. I do believe that the plaintiff--that there is no presumption that the plaintiff has to have an expert. I believe the facts are consistent with this opinion. The motion is denied.

On February 26, 2026, the trial court signed an Order Adjudicating Motion for Partial Summary Judgment. The order states: “Considering the briefs, evidence in the record, applicable law, arguments of counsel, and for the reasons orally assigned in open court, the motion is Denied.”³ Defendant filed a notice of intent to seek supervisory writ on February 20, 2026. The trial court set a return date of March 30, 2026, but later extended the return date to April 29, 2026. The instant writ application was filed on April 27, 2026.

DISCUSSION

Medical Malpractice Claim

Defendant asserts as the sole assignment of error that the trial court erred in denying her motion for summary judgment because Plaintiff cannot prove his medical malpractice claim without expert testimony.

An appellate court reviews a ruling on a motion for summary judgment de novo using the same criteria that governs the trial court's determination that summary judgment is appropriate; whether a genuine issue of material fact exists, and if the mover is entitled to summary judgment as a matter of law. Latour v. Brock, 23-00262, p. 3 (La. 6/21/23), 362 So.3d 405, 407-408. Pursuant to La. C.C.P. art. 966(D)(1), the burden of proof rests with the moving party. However, if the mover will not bear the burden of proof at trial on the issue before the court during the motion for summary judgment, the mover's burden “does not require him to negate all essential elements of the adverse party's claim, action or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense.” Id. at 408.

Regarding the non-moving party, La. C.C.P. art. 967(B) states that he may not rest solely on the allegations in his pleadings. Instead, the non-moving party, “must set forth specific facts showing that there is genuine issue for trial.” Id. If the non-mover fails to do so, “summary judgment, if appropriate, shall be rendered against him.” Jordan v. Comty. Care Hosp., 19-0039, p. 10 (La. App. 4 Cir. 7/24/19), 276 So.3d 564, 575. (quoting La. C.C. P. art. 967 (B)).

In order to prevail on his malpractice claim, the Plaintiff must prove three elements: (1) the applicable standard of care; (2) the defendant's breach of the standard of care; and (3) the causal connection between the breach and the injury. Id. (citing La. R.S. 9:2794). In contrast, the Defendant, a health care provider, does not have the burden of disproving medical malpractice, rather she need only point out that Plaintiff cannot support his claim. Jordan, 19-0039, p. 12, 276 So.3d at 576. “Once [the] health care provider has established an absence of factual support for an essential element of plaintiff's claim, the plaintiff must come [forward] with evidence to preclude summary judgment.” Id.

Given the complexity of a medical malpractice claim, “a plaintiff will likely fail to sustain his burden of proving his claims under La. R.S. 9:2794’s requirements without medical experts․.” Pfiffner v. Correa, 94-0092, 94-0963, 94-0992 p. 9 (La. 10/17/94), 643 So.2d 1228, 1234. Thus, generally, expert testimony is required in a medical malpractice action. Schultz v. Guoth, 10-0343, p. 7 (La. 1/19/11), 57 So.3d 1002,-1006-1007. The jurisprudence, however, has recognized an exception in which expert testimony is not required. Pfiffner, 94-0924, p. 9, 643 So.2d at 1233. This narrow exception precludes expert testimony in the face of obvious negligence; that is, “instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician's conduct as well as any expert can․.” Id. at 1234.

Plaintiff argues that expert testimony is unnecessary to establish his medical malpractice claim pursuant to the presumption articulated in Housley:⁴

[a] claimant's disability is presumed to have resulted from an accident if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of casual connection between the accident and the disabling condition.

Housley v. Cerise, 579 So.2d 973, 980 (La. 1991) (quoting Lukas v. Ins. Co. of North America, 342 So.2d 591 (La. 1977). We do not agree.

In order for Plaintiff to avail himself of the Housley presumption, he must first prove that he was healthy prior to the Defendant's physical examination of him. See Miller v. Tulane Hosp., 09-1740, p. 8 (La. App. 4 Cir. 5/12/10), 38 So.3d 1142, 1147 (holding that a plaintiff's inability to establish the first element under Housley is fatal to his medical malpractice claim). Plaintiff visited UMC due to complications from a prior hernia surgery. His medical records indicate that he was diagnosed with and treated for swelling of his scrotum and pain in his left testicle. He continued to complain of testicular pain and neuropathic pain after his visit to the emergency room. Thus, he was not in good health prior to his surgery and his reliance on Housley is misplaced.

Further, for Plaintiff to avail himself of the narrow exception delineated in Pfiffner, he must prove that Defendant committed obvious negligence. The jurisprudence has held that obvious negligence does not represent the majority of medical malpractice claims, and has only been found when a medical provider has performed an obviously careless act. Moore v. Bd. of Supv's of LSU, 23-0041, p. 9 (La. App. 4 Cir. 5/4/23), 367 So.3d 777, 784. Louisiana courts have found obvious negligence in cases such as “fracturing a leg during an examination, amputating the wrong arm, dropping a knife, scalpel or acid on a patient, or leaving a sponge inside a patient's body from which a lay person can infer negligence.” Pfiffner, 94-0924, p. 9, 643 So.2d at 1233.

Here, Defendant twice obtained consent from the penitentiary guard to examine Plaintiff. The Plaintiff, however, offers no evidence to either establish the standard of care, or that Defendant deviated from the standard of care during the examination. Instead, he alleges that Defendant caused pain in a sensitive area on his body that was already experiencing pain prior to and during an examination to diagnosis and treat said pain. In Pfiffner, the acts committed by medical personnel were so egregious, that a medical expert was not required for a lay person to find negligence; the same is not true here.

There is no dispute that an examination of Plaintiff's groin area was necessary to obtain a diagnosis. A lay person, however, does not have the requisite knowledge to determine whether the Defendant's examination was proper and appropriate under the circumstances without some expert medical guidance. See Miller, 09-1740, p. 8, 38 So.3d at 1147. Furthermore, it would also be difficult for a lay person to discern whether Defendant's examination was the proximate cause of his neuropathy, or a post-surgical complication, without expert medical testimony establishing the same. Thus, Plaintiff cannot rely on the presumption in Pfiffner to establish medical malpractice.

In his opposition to Defendant's motion for summary judgment, Plaintiff also alleges that his medical malpractice claim stems from Defendant's failure to obtain his informed consent prior to the examination.⁵ He argues that although he tried to prevent Defendant from touching his left testicle again after he experienced pain from her initial examination, she intentionally committed a battery when she again grabbed and squeezed and slammed his left testicle onto the bed. He avers that battery cases/lack of consent cases fall under lack of informed consent cases. See In re Med. Rev. Panel for Claim of Larche, 97-2397, pp. 6-7 (La. App. 4 Cir. 4/15/98), 714 So.2d 56, 59. He also argues that expert testimony is not required; instead he alleges that whether or not he consented to Defendant's examination is a question of fact, which precludes summary judgment.

The jurisprudence has developed the following four-part test to establish an informed consent claim:

1) The existence of a material risk unknown to the patient;

2) A failure to disclose a risk on the party of the physician;

3) That the disclosure of the risk would have led a reasonable patient in the patient's position to reject the medical procedure or choose another course of treatment; and

4) Injury

Brandt v. Engle, 00-3416, p. 7, n.1 (La. 6/29/01), 791 So.2d 614, 619 (citations omitted). As a threshold matter, we decline to address the merits of Defendant's lack of informed consent claim. An informed consent claim is a separate claim from medical malpractice. Ganoza v. Laborde, 23-0392, p. 13 (La. App. 4 Cir. 12/5/23), 380 So.3d 578, 588 (citations omitted). The elements to establish an informed consent claim are distinct from those to establish medical malpractice. Id. “Although Louisiana does not require ‘theory of the case’ pleading, to support recovery for lack of informed consent, the plaintiff's petition must set forth facts upon which such recovery can be based.” Salvador v. Main St. Family Pharmacy, L.L.C., 17-1757, p. 8 (La. App. 1 Cir. 6/4/18), 251 So.3d 1107, 1113. Plaintiff's Petition for Damages alleges medical malpractice, but does not allege any facts relative to an informed consent claim. Moreover, he raises the issue of informed consent for the first time in his opposition to Defendant's motion for summary judgment. Pursuant to our de novo review we find that Plaintiff's lack of informed consent claim is not properly before this Court.

Having determined that neither the Houlsey nor Pfiffner jurisprudential exceptions apply, and pursuant to our de novo review, we find that Plaintiff cannot establish his burden of proof for medical malpractice. Therefore, we reverse the judgment of the trial court and grant Defendant's writ application as to the medical malpractice claim only.

Intentional Tort Claim

Plaintiff also alleges an intentional tort, that Defendant committed a battery during his examination in his original Petition for Damages. In her motion for summary judgment, Defendant sought dismissal of all Plaintiff's claims against her, yet the trial court only addressed the medical malpractice claim at the hearing and in the February 26, 2026 judgment. Relator's writ application has only addressed the Plaintiff's medical malpractice claim. Consequently, the intentional tort claim is not presently before this Court. Therefore, we deny Defendant's writ application in part as to the intentional tort.

DECREE

For the foregoing reasons, we grant Defendant's writ application in part, reverse the trial court's February 26, 2026 denial of Defendant's motion for summary judgment as it relates to Plaintiff's medical malpractice claim, and remand to the trial court for further proceedings consistent with this writ opinion.

WRIT GRANTED IN PART; DENIED IN PART, REMANDED

FOOTNOTES

1.   The request for the medical review panel and the subsequent opinion were not attached to the instant writ application as the trial court excluded the opinion at the hearing on the motion for summary judgment based on the objection of the Defendant.

2.   At the hearing on Defendant's motion for summary judgment the trial court only ruled on Plaintiff's medical malpractice claim, denying summary judgment although Defendant sought dismissal of all claims. Relator's writ application only addresses the medical malpractice claim.

3.   The order does not explicitly pinpoint whether both the intentional tort and medical malpractice claims were denied. We note that Relator's writ application solely addresses the medical malpractice claim.

4.   The Housley presumption was overturned by Act 18 of 2025 as noted in La. C.E. Art. 306.1, which states: “[n]otwithstanding any other provision of law, in a claim for personal injury damages that is not raised pursuant to the Louisiana Workers’ Compensation Law, the lack of a prior history of an illness, injury or condition shall not create a presumption that an illness, injury, or condition was caused by the act that is the subject of the claim.” Section 3 of Act 18 provides that the Act is prospective with an effective date of May 28, 2025, which is after Defendant filed his suit.

5.   Pursuant to La. R.S. 40:1157.1:A. Notwithstanding any other law to the contrary, written consent to medical treatment means the voluntary permission of a patient, through signature, marking, or affirmative action through electronic means pursuant to R.S. 40:1163.1, to any medical or surgical procedure or course of procedures which sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is evidenced by a signature, marking, or affirmative action through electronic means, by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.

Judge Monique G. Morial