                    IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                 ______________________________________________

BARBARA PIERCE,

       Claimant-Appellant,                                                  FILED
                                                    Tennessee Claims Commission
                                                    No. 96-015            June 12, 1998
Vs.                                                 C.A. No. 02A01-9710-BC-00245
                                                                            Cecil Crowson, Jr.
STATE OF TENNESSEE,                                                         Appellate C ourt Clerk

      Defendant-Appellee.
____________________________________________________________________________

                FROM THE TENNESSEE CLAIMS COMMISSION
           THE HONORABLE MARTHA B. BRASFIELD, COMMISSIONER




                       L. L. Harrell, Jr.; Harrell & Harrell of Trenton
                                         For Appellant

                          Beauchamp E. Brogan, General Counsel
                        JoAnn C. Cutting, Assistant General Counsel
                                of Memphis, For Appellee




                                        AFFIRMED

                                       Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY KIRBY LILLARD, JUDGE


       This is a medical malpractice case tried by the Tennessee Claims Commission. Claimant

Barbara Pierce (Pierce) appeals from the judgment of the Claims Commision for defendant, State
of Tennessee. Pierce filed this complaint alleging that while a patient at the Regional Medical

Center in Memphis, Tennessee, she had surgery for removal of her appendix. She avers that she

was under the care and treatment of Dr. Kenna Williams and Dr. Robert Howell, medical

residents and employees of the State of Tennessee through the University of Tennessee School

of Medicine. She basically alleges that the defendant, University of Tennessee, through its

employees, breached the recognized standard of acceptable professional practice in its medical

treatment thus resulting in a severe infection that necessitated further hospitalization, expense,

pain, and suffering.

       The Commissioner’s excellent order provides a thorough statement of the facts as

developed from the testimony, and we quote those pertinent parts of the order:

                  At approximately 3 p.m. on May 16, 1988, the claimant, a 41-
               year-old woman, presented herself in the emergency room of the
               Regional Medical Center, complaining of pain in the lower right
               section of her abdomen, accompanied by nausea, vomiting and a
               fever of approximately 101 F. her white blood cell count at
               19,800.     She was diagnosed with appendicitis, and at
               approximately 10 p.m., an appendectomy was performed by Dr.
               Robert Howell, a medical resident and an employee of the State
               of Tennessee thorough the University of Tennessee Memphis
               Health Science Center (UT). Immediately prior to surgery, the
               claimant was given intravenous antibiotics, Gentamycin and
               Clindomycin. In surgery, the claimant’s obesity (her weight was
               approximately 275-280 pounds) necessitated a generous incision
               to expose her appendix. Dr. Howell reported seeing no gross pus
               or blood around the appendix. The appendix, itself, appeared red
               and swollen, but showed no evidence of gangrene or perforation.
               Both the appendix and a swab of the fluid surrounding the
               appendix were sent to the laboratory for analysis. The incision
               was irrigated and closed, and the claimant was sent to the
               recovery room and then, during the early hours of May 17, 1988,
               transferred to her hospital room.

                   Initial laboratory reports received by the physicians on May
               18, 1988, indicated no active bacteria in the fluid specimen. The
               microscopic examination of the appendix and the culture of the
               fluid specimen took several days to complete.

                     Throughout her hospital recuperation, the claimant was
               examined and/or treated by various physicians and medical
               students from UT. The claimant was primarily treated by Dr.
               Keena Williams, a medical resident who first saw the claimant on
               May 17, 1988, and continued to provide care to her until she was
               discharged from the hospital on May 20, 1988. The claimant was
               also examined daily by Bryan L. Woods, who was a third-year
               medical student at UT.

                  Following her surgery, the claimant experienced fever which
               peaked near 103.5° at 6 p.m. on May 17, 1988 but declined to
               99.4° by the time of her discharge from the hospital on May 20,

                                                2
1988. Among tests administered during this period were a chest
x-ray, a urinalysis, a vaginal smear, and several blood tests, the
results of which were normal. By the date of her discharge from
the hospital, her white blood cell count had fallen to
approximately 8,000, a range which is somewhat high but which
is generally considered to be within the normal range limits.

   During her hospital stay, the claimant received several doses
of Tylenol 3 for pain, and two doses of regular Tylenol for fever.
She received no antibiotics except those administered
immediately prior to surgery.

   Treatment notes and nurses notes reflect that the examinations
of the claimant’s incision revealed a normally-healing wound,
with one exception; on May 19, 1988, a nurse [Nurse Mary Alice
Anderson] noted that the area around the staples in the claimant’s
incision was “red and hot with [a] red streak up to [the]
umbilicus.” Physicians’ notes written just prior to the claimant’s
discharge on May 20, 1988 described the wound as healing
normally, and stated that the “wound look[ed] good.”

     On May 19, 1988, the claimant’s physicians received via
telephone the final results of the microscopic examination of the
appendix and the culture of he fluid specimen which were taken
during surgery. The written report followed on May 20. Notes
made by Bryan L. Woods on May 19, 1988, state that the
laboratory had diagnosed the appendix as having “acute
suppurative appendicitis with multiple areas of microscopic
purulent perforation,” which, defined in laymen’s terms, is an
appendix with microscopic perforations (tears or holes) and
microscopic amounts of pus. With regard to the cultured
specimen, the laboratory reported that “few e-coli bacteria” were
present in the cultured specimen. These e-coli bacteria were
sensitive to all antibiotics.

  The claimant was released from the hospital on May 20, 1988,
with routine instructions on wound care, follow-up visits, and
symptoms which would require immediately medical attention.
She was given a prescription for pain medication, but no
prescription for antibiotics.

      On May 25, 1988, the claimant returned to the hospital
complaining that her wound had burst open and was seeping a
purulent discharge. Dr. Keena Williams examined the claimant’s
incision and determined it to be infected. The claimant was
readmitted to the hospital. The claimant’s initial temperature was
recorded as 97° degrees and later rose to 101°. Her white blood
cell count was in the range of 18,000. Her surgical incision was
opened, drained and cleaned. It was left open for healing “from
the inside out.” Antibiotics were administered. She was released
from her second hospital confinement on June 4, 1988. It took
approximately three months for the incision to heal completely.

       *               *              *               *

    The parties’ expert witnesses agreed that the most common
complication of appendectomies is infection of the surgical
wound (incision), and that such infections are most often the
result of bacteria having leaked into the wound from the infected

                                3
appendix, either before or during surgery (while the infected
appendix is being removed from the abdominal cavity through the
surgical incision). The parties’ expert witnesses agreed that the
risk of wound infection increases with the severity of the
inflammation of the appendix. (There are four stages of
appendicitis: (1) In the first stage, the outside of the appendix
appears mildly red with bright blood vessels; (2) In the second
stage, the entire appendix is inflamed, red and swollen; (3) In the
third stage, the appendix develops microscopic perforations; and
(4) in the fourth stage, the appendix develops visual spots of
gangrene (pus) and visual perforations or ruptures. The risk of
infection increases with each stage of appendicitis because the
bacteria are more likely to escape from the perforations and the
pus.) The parties’ expert witnesses also agreed that the pre-
operative antibiotics lessen the risk of surgical wound infection,
although the experts disagreed as to the level and duration of the
effectiveness of the pre-operative antibiotics. Also, based on the
fact that the claimant did develop an infection in the surgical
wound, the experts agreed that the claimant was “brewing an
infection” when she was released from the hospital.

   The parties primary differences arise over whether or not the
claimant should have been administered antibiotics post-
operatively.

    Pursuant to Tenn. Code Ann. § 29-26-115(b), both parties
presented medical experts who testified on the issues of the
standard of acceptable professional practice and whether or not
the defendant’s employees committed malpractice in failing to
administer post-operative antibiotics to the claimant.

   The claimant’s expert witness, Dr. Marshall L. Koonce, is a
semi-retired physician licensed to practice in the State of
Tennessee. His area of expertise lies in internal medicine and
rheumatology. He graduated from medical school in 1964, and
completed his medical residency in 1967 at the University of
Tennessee. He trained in rheumatology from 1967 through 1969,
and went into private practice in 1969. Dr. Koonce practiced
medicine full-time until 1986, when he underwent hip surgery
and was unable to return to active practice. He has, however,
continued to see a few patients on a limited basis, and has
maintained subscriptions to several respected medical journals.
Dr. Koonce, himself, did not perform appendectomies, but he did
provide post-surgical care to many appendectomy patients. Dr.
Koonce stated that he is familiar with the standards of care in
Memphis and Shelby County for treating physicians.

   Dr. Koonce testified that, based on his experience with other
doctors and surgeons at Baptist Hospital and his own knowledge,
the recognized standard of acceptable professional practice with
regard to appendectomy patients is to administer pre-operative
antibiotics and, in most cases, to administer post-operative
antibiotics, especially to patients who exhibit symptoms of
infection and to those deemed to be at high risk for infection. He
testified that patients should be observed for elevated body
temperatures, wound inflammation, elevated white blood cell
counts, and any other obvious indicators of infection.

      According to Dr. Koonce, the pre-operative antibiotics

                                4
administered to the claimant were, by themselves, insufficient to
combat the risk of infection, especially in light of her obesity
which, in his opinion, placed her at a higher risk of contracting an
infection. He stated that he would have administered antibiotic
drugs to the claimant “for a few days after surgery” as a
preventative measure. In support of his position, he stated that
“one shot of antibiotics has very little effect,” and pointed out that
the fluid specimen obtained during the surgery eventually
cultured e-coli bacteria; He maintained this was a clear indication
that the pre-operative antibiotics had been inadequate to destroy
bacteria and prevent infection. He stated that he would have
“given her antibiotics straight through [her hospitalization],” and
that he believed the UT physicians deviated from the standard of
care in not doing so.

     Dr. Koonce further opined that (1) the claimant’s elevated
body temperatures, (2) the red streak in her surgical wound, and,
(3) the lab report which shows that her appendix was
microscopically perforated and that e-coli bacteria grew in the
specimen of the fluid outside the appendix were indicators of
infection and warranted the administration of post-operative
antibiotics to combat the infection. He testified that during an
infectious process, body temperatures often elevate then drop, and
stated that, in his opinion, the claimant’s body temperature
readings were consistent with the pattern often seen during an
infectious process. He stated that her symptoms would have
prompted him to prescribe antibiotics, keep her in the hospital for
a few more days, and, if conditions warranted, possibly to have
opened and cleaned the surgical wound.

   (Dr. Koonce’s first deposition was taken January 30, 1991 and
was marked as Exhibit 3. Having read the records from the
hospital, it was his opinion that the claimant’s infection in the
appendix (which was the reason for the surgery), the
microscopically ruptured appendix, her obesity, her fever, her red
streak and the wound culture which showed e-coli bacteria were
all indications that antibiotics should have been administered
post-operatively. In this deposition Dr. Koonce determined that
the wound culture was a culture of the actual surgical incision
taken by Bryan L. Woods, then a third-year medical student, on
May 18, 1988. The proof indicates that no culture was made of
the surgical incision after surgery. On May 18, 1988, Dr. Woods
was recording what the laboratory had reported to him by
telephone concerning the culture taken by Dr. Howell during
surgery on May 16, 1988.)

    The defendant’s expert witness, Dr. Hiram C. Polk, Jr., is a
medical instructor and is chairman of the Department of Surgery
at Louisville School of Medicine. He received his medical degree
from Harvard University in 1960, and completed his residency at
Barnes Hospital in St. Louis, Missouri, in 1965. Since that time,
Dr. Polk has taught at schools of medicine in Florida, Missouri
and Kentucky. He has authored approximately 300 articles in the
medical field, and has contributed chapters to various medical
textbooks. His areas of surgical specialization are the esophagus
and certain kinds of cancer, but his lifetime research interest has
been matters related to infection in surgery. Many of his articles
pertain to wound care. He has been a practicing surgeon for 28
years, has supervised thousands of appendectomies in his capacity

                                  5
as an instructor, and has personally rendered care to hundreds of
private appendectomy patients.

    Dr. Polk advised that it is virtually impossible to remove an
appendix without contaminating the surgical wound, and reported
that 10%-30% of appendectomy patients develop surgical wound
infections despite the most strict precautions. (Dr. Koonce opined
that Dr. Polk’s figures were high. Although Dr. Koonce did not
have the statistics, he testified that he had seen the infection
reports from Baptist Hospital and that infection rates were lower
there.) Dr. Polk described the standard of care of appendectomy
patients as follows:

    First, appendicitis should be timely diagnosed to enable the
surgeon to remove the appendix as soon as possible. The surgical
incision should be long enough to allow the appendix to be
brought straight up through the wound with as little manipulation
as possible.      Secondly, antibiotic treatment should be
administered to reduce the risk of infection. Thirdly, post-
surgical patients should be closely monitored for symptoms of
infection. Fourth, pathological studies should be performed to
determine whether bacteria from the infected appendix had
contaminated the abdominal cavity. Finally, the wound should be
carefully closed.

    Dr. Polk opined that the claimant’s appendicitis was timely
diagnosed, and that her appendectomy was performed as soon as
was practicable. Based upon the surgeon’s notes, Dr. Polk found
no evidence that the surgeon had breached the accepted standards
of care during the claimant’s surgery or during closure of the
surgical wound. In his opinion, the proper pathological testing
was performed.

    With regard to antibiotic drug treatment in general, Dr. Polk
testified that the accepted standard of care dictated the
administration of antibiotics prior to appendectomies, but stated
that post-operative antibiotics should be prescribed on a case-by-
case basis, depending on the severity of the patient’s appendicitis
and the likelihood of bacterial contamination from the appendix.
The pre-operative antibiotics given to the claimant, Gentamycin
and Clindomycin, were, according to Dr. Polk, the most
commonly-used combination of antibiotics administered prior to
appendectomies. Dr. Polk testified that although he, personally,
preferred a different antibiotic combination, he felt he was in a
minority and found no fault with the types of antibiotics sued or
the dosages administered by the defendant, deeming them
“sufficient for her stage of appendicitis.”

    Dr. Polk stated that research indicated that antibiotics “do a
great deal of good prior to contamination,” but that they are
“measurably less effective once contamination occurs.” Dr. Polk
testified that, in cases such as the claimant’s where a visual
inspection of the appendix reveals no perforations or gangrene,
his personal preference is to administer antibiotics prior to
surgery, and “a dose or two” during the hours immediately
following the surgery. However, Dr. Polk advised that there is a
great deal of medical evidence that a single pre-operative dose of
antibiotics is enough to prevent infection, and that he would not
take issue with a physician who chose not to administer post-

                                6
operative antibiotics as a matter of course following the removal
of an apparently un-perforated appendix. Dr. Polk opined that the
defendant did not deviate from the standard of care in choosing
not to administer post-operative antibiotics to the claimant as a
routine course of action.

    With regard to post-operative symptoms, Dr. Polk testified
that physicians generally look to the following areas to determine
an appendectomy patient’s progress: (1) Does the patient feel
better? (2) Are his/her intestines working? (3) Has his/her body
temperature declined? (4) Has the white blood cell count
declined? Dr. Polk stated that satisfactory answers to all four
questions in concert would lead a physician to determine that a
patient was doing OK and that the course of treatment should not
be altered.

     Dr. Polk testified that, according to the claimant’s medical
records, she was feeling better by the date of release from her
initial hospitalization and had commented to the nurses that she
wanted to go home. By the date of her discharge, she was
walking and receiving visitors. Her intestines were working. Her
blood count had returned to a normal level. Dr. Polk advised that
he would have felt some concern that the claimant ran a fever of
101° the night before her discharge. However, he stated that,
since all of her other symptoms were essentially normal, he would
have worried about her a little bit, but would have kept her [in the
hospital] for another day or sent her home and asked her to be
sure and call [him] if she had any trouble. Additionally, on the
date of her discharge, her temperature had dropped to 99.4°,
which could be considered a normal temperature. The claimant
had received Tylenol and Tylenol 3 (which contains codeine and
is generally prescribed as a pain reliever) in the 24-hour period
prior to her discharge, but not enough, according to Dr. Polk, to
have masked a high fever or an infection. Dr. Polk testified that
her fever showed an overall pattern of decline, and that he would
not have administered further antibiotics based on the fever alone.
He further testified that one more day in the hospital might have
resulted in an earlier diagnosis of the wound infection, but would
not have prevented the infection, nor would it have altered the
eventual treatment of the infection (in other words, if the wound
infection had been discovered prior to her release from the
hospital, the treatment of the wound infection at that time would
have been the same as the treatment she received during her
second hospitalization).

    With regard to the issue of the claimant’s obesity and the
additional risk it posed, Dr. Polk testified that there is arguable
data on the impact of obesity with operative wound infections.
He stated that most physicians believe obesity makes one more
prone to infection. Nevertheless, Dr. Polk advised that the
claimant’s obesity would not have prompted him to order post-
operative antibiotics. He stated that when closing the surgical
wound, he might have used an antibiotic spray, but added that the
data on the effectiveness of such sprays is “shaky,” and that the
UT surgeon could not be faulted for not using an antibiotic spray.

   With regard to the red streak noted by Nurse Anderson, Dr.
Polk stated that he would have “worried about it” and would have
“wondered what it was.” He testified that redness around surgical

                                 7
                staples is common, but a red streak would be unusual. He
                advised that he would have examined the wound, himself, and if
                he had seen nothing unusual, he would have discharged the
                claimant with instructions to call him or return to the hospital if
                trouble arose. He testified that he would not have administered
                antibiotics based upon the nurse’s observation.

                   Finally, with regard to the pathology report that the appendix
                was microscopically perforated and that the fluid specimen had
                cultured e-coli bacteria, Dr. Polk testified that neither of these
                findings would have prompted him to administer additional
                antibiotics. He stated that by the time the laboratory findings
                were received, the claimant’s recovery seemed to be progressing
                in a satisfactory manner, all things considered. She had received
                no post-surgical antibiotics which might have obscured a brewing
                infection. Based on her condition at the time of her discharge on
                the fourth post-operative day, his opinion would have been that
                the pre-operative antibiotics had successfully eliminated what few
                e-coli bacteria had escaped from the appendix, and thus he would
                have released the claimant with instructions to call him should
                any troublesome symptoms arise.

                   It must also be noted that many of Dr. Polk’s opinions were
                supported in the excerpt from the Textbook of Surgery, filed as
                Exhibit 12.1



       1
           Relevant portions of this text state:

                    Antibiotics are administered preoperatively to help control
                any local or generalized sepsis that may be present and to
                reduce the incidence of postoperative wound infection.
                Although the prophylactic administration of antibiotics
                continues to be a matter of controversy, the evidence that has
                accumulated over approximately the past decade is clearly in
                favor of antibiotic administration. Antibiotics probably are of
                minor benefit unless the appendix is gangrenous or has
                perforated. . . . Hence, we administer antibiotics to all patients
                suspected of having appendicitis but continue administration
                intraoperatively and postoperatively only in those patients
                demonstrated to have complicated appendicitis.
                                        *      *       *
                    Antibiotic therapy should not be continued post-operatively
                unless the appendix is gangrenous or perforated. The patient
                may be discharged as early as the third postoperative day
                provided there is no undue wound tenderness or fever and
                antibiotics have not been administered for 48 hours prior to
                discharge.
                                        *      *       *
                    Infection of the subcutaneous tissues is the most common
                complication following appendectomy. . . . Since wound
                infections in cases of appendicitis are caused by fecal
                organisms, the classic signs of infection (calor, dolor, rubor,
                tumor) often are not present. The early signs of a fecal wound
                infection are undue pain and modest edema around the wound.

Textbook of Surgery 974, 978, 980 (David C. Sabiston, Jr., M.D. et al. eds., 13th ed. 1986)
(emphasis added).

                                                   8
                                  In summary, Dr. Koonce opined that the UT physicians erred
                               in (1) failing to administer post-operative antibiotics as a
                               prevention against infection, especially in light of her obesity, (2)
                               failing to administer post-operative antibiotics in response to her
                               symptoms of an elevated body temperature and redness at the
                               incision site, and (3) failing to administer post-operative
                               antibiotics in response to the pathology laboratory’s finding of e-
                               coli bacteria in the fluid specimen and microscopic perforations
                               of the appendix.

                                  Dr. Polk opined that the treatment given to the claimant by UT
                               physicians met the recognized standard of acceptable professional
                               practice. He deemed pre-operative antibiotics a necessity, but
                               believed that post-operative antibiotics are optional, depending
                               upon the patient’s condition. According to Dr. Polk, he saw
                               nothing in the claimant’s medical records which would have
                               caused him to recommend additional antibiotics or to alter the
                               course of the treatment ordered by the UT physicians. Further,
                               Dr. Polk opined that the treatment given to the claimant upon her
                               return to the hospital was the correct treatment and was the same
                               treatment she would have received if the infection had been
                               discovered during her first hospitalization.

               A f t e r c o n s i d e r in g t h e e v i d e n c e p r e s e n t e d , t h e C o m m i s s i o n e r f o u n d t h a t D r . P o l k ’ s t e s ti m o n y w a s “ m o r e

c o m p e ll i n g t h a n D r . K o o n c e ’ s t e s ti m o n y . ” T h e C o m m i s s i o n e r e x p r e s s l y f o u n d t h a t D r . P o l k ’ s c r e d e n ti a ls w e r e s u p e r i o r

t o t h o s e o f D r . K o o n c e . I n a d d i t i o n , t h e C o m m i s s i o n e r s ta t e d :

                                                  D r . K o o n c e ’ s te s ti m o n y c a n n o t b e g i v e n a s m u c h c r e d e n c e a s D r . P o l k ’ s
                               f o r s e v e r a l f a c t u a l r e a s o n s . D r . K o o n c e o p in e d t h a t t h e c la i m a n t s h o u ld h a v e
                               r e c e i v e d p o s t - o p e r a t i v e a n t ib i o t i c s i n r e s p o n s e t o h e r s y m p t o m s o f a n e le v a t e d
                               b o d y t e m p e r a t u r e a n d r e d n e s s a t t h e i n c i s io n s i t e . W i t h r e g a r d t o r e d n e s s a t t h e
                               in c isio n s ite , h e e s p e c i a l l y s t r e s s e d t h a t n u r s e M a r y A n d e r s o n ’ s n o t e o f M a y 1 9 th
                               d e s c r i b i n g t h e c l a i m a n t ’ s s u r g i c a l w o u n d a s “ r e d h o t w i t h [ a ] r e d s t r e a k u p to t h e
                               u m b i l i c u s ” s h o u l d h a v e a l e r te d t h e U T p h y s i c i a n s t o t h e p r e s e n c e o f in f e c ti o n i n
                               t h e c l a i m a n t ’ s s u r g i c a l w o u n d . M s . A n d e r s o n ’ s n o te i s th e o n l y i n d i c a ti o n i n t h e
                               m e d i c a l r e c o r d s th a t t h e s t a p l e s a t t h e i n c i s i o n s i t e w e r e r e d o r t h a t t h e c la i m a n t
                               h a d a re d s tr e a k o n h e r a b d o m e n . A f te r n u r s e A n d e rs o n ’s o b se rv a tio n , th e
                               i n c i s i o n w a s e x a m i n e d a t v a r i o u s ti m e s b y o t h e r n u r s e s a n d d o c t o r s , w i t h t h e
                               fo llo w in g n o t e s : “ [ N ] o e v i d e n c e o f d r a i n a g e o r p u f f i n e s s ,” “ sk in w a rm , d r y ,”
                                “ in t a c t a n d d r y ” a n d “ w o u n d l o o k e d g o o d .”

                                                D r . K e n n a W i l l i a m s t e s t i f ie d t h a t s h e r e c e i v e d n u r s e A n d e r s o n ’ s
                               m e s s a g e c o n c e r n i n g t h e r e d s t r e a k s a t t h e c la i m a n t ’ s in c i s io n , a n d t h a t s h e
                               e x a m i n e d t h e i n c i s io n o n M a y 1 9 t h a n d M a y 2 0 t h , p r i o r t o t h e c la i m a n t ’ s
                               d is c h a rg e . A c c o rd in g to D r. W illia m s, th e w o u n d a p p e a re d to b e a n o r m a l
                               s u r g i c a l w o u n d , w i t h n o s i g n s o f e x c e s s iv e r e d n e s s o r f e v e r . S h e s a w n o r e d
                               s t r e a k o n t h e c la im a n t’ s a b d o m e n , a n d d o e s n o t k n o w w h a t n u r s e A n d e r s o n m a y
                               h a v e s e e n , w i t h t h e p o s s ib l e e x c e p t i o n o f a s t r e t c h m a r k , o r a m a r k l e f t b y t h e
                               s u rg ic a l ta p e w h ic h h a d h eld th e d re ss in g in p la c e . A lso , D r. P o lk te stif ie d th a t
                               h e h a d n e v e r s e e n a s t re a k a s d e s c r i b e d b y n u r s e A n d e r s o n . T h e r e w a s n o r e d
                               s t r e a k a t t h e i n c i s i o n w h e n t h e c l a i m a n t r e tu r n e d t o t h e h o s p i t a l o n M a y 2 5 . I t
                               m u s t b e c o n c l u d e d th a t t h i s re d s t r e a k w a s n o t a n i n d i c a to r o f i n f e c ti o n i n t h e
                               s u rg ic a l w o u n d .

                                                W i t h r e g a r d t o t h e f i n d i n g o f e - c o l i b a c te r i a i n t h e f lu i d s p e c i m e n , a s s e t
                                o u t a b o v e , D r . K o o n c e i n c o r r e c t l y b e l ie v e d t h a t t h e f lu i d s p e c i m e n w a s o b t a i n e d
                                a n d a n a l y z e d p o s t- s u r g i c a l l y b y B r y a n W o o d s w h e n , in f a c t, t h e s p e c i m e n w a s

                                                                                                   9
                                 o b t a in e d d u r i n g t h e s u r g e r y a n d w a s a n a ly z e d b y th e p a th o l o g y l a b o r a to r y .

C o n s e q u e n t l y , t h e C l a i m s C o m m i s s i o n f o u n d t h a t t h e U T p h y s i c i a n s a d h e r e d t o t h e s ta n d a r d o f c a r e i n t h e i r t r e a tm e n t

o f P ie r ce a n d d is m is se d th e c la im .

                T h is is a d ir e c t a p p e a l fr o m th e T e n n e s s e e C la im s C o m m is s io n a n d is g o v e r n e d b y T e n n e s s e e R u l e s o f

A p p e l l a t e P r o c e d u r e , T . C . A . § 9 - 8 - 4 0 3 ( a ) ( 1 ) ( S u p p . 1 9 9 7 ) . S i n c e t h i s i s a n o n j u r y c a s e , i t i s r e v i e w e d de novo u p o n

t h e r e c o r d w i t h a p r e s u m p t i o n o f c o r r e c t n e s s o f t h e C o m m i s s i o n e r ’ s f i n d i n g s o f f a c t . T . R . A . P . 1 3 ( d ) , Sanders v.

State, 7 8 3 S . W . 2 d 9 4 8 , 9 5 1 ( T e n n . A p p . 1 9 8 9 ) .

                T h e s o l e i s s u e o n a p p e a l is w h e t h e r th e e v i d e n c e p r e p o n d e r a t e s a g a i n s t th e C l a im s C o m m i s s i o n e r ’ s fi n d i n g

t h a t t h e c l a i m a n t f a il e d t o s h o w t h a t t h e S t a t e e m p l o y e e s d i d n o t c o n f o r m t o t h e s t a n d a r d o f c a r e .

                A p l a in t i f f i n a m e d ic a l m a lp r a c ti c e s u i t c a r r i e s t h e b u r d e n o f p r o v i n g t h e f o l l o w i n g :

                                 (1 ) T h e re    c o g n iz e d s t a n d a r d o f a c c e p t a b l e p r o f e s s io n a l p r a c ti c e in t h e p r o f e s s i o n
                                 and the sp        e c i a l t y t h e r e o f , i f a n y , t h a t th e d e f e n d a n t p r a c t i c e s i n t h e c o m m u n i t y i n
                                 w h ic h h e       p r a c ti c e s o r i n a s i m i l a r c o m m u n i t y a t t h e ti m e th e a ll e g e d in j u r y o r
                                 w ro n g fu l    a c ti o n o c c u r r e d ;

                                 ( 2 ) T h a t t h e d e f e n d a n t a c te d w i t h l e s s th a n o r f a i l e d t o a c t w i t h o r d i n a r y a n d
                                 r e a s o n a b l e c a r e i n a c c o r d a n c e w i t h s u c h s ta n d a r d ; a n d

                                 ( 3 ) A s a p r o x i m a te r e s u l t o f t h e d e f e n d a n t's n e g l i g e n t a c t o r o m i s s i o n , t h e p la in t i f f
                                 s u ff e re d in ju r ie s w h ic h w o u ld n o t o th e rw is e h a v e o c c u rr e d .

T . C .A . § 2 9 - 2 6 - 1 1 5 ( a ) ( 1 9 8 0 ) .

                P i e r c e c o n t e n d s t h a t s h e s a ti s f i e d h e r b u r d e n o f p r o o f i n t h e i n s ta n t c a s e . P i e r c e n o t e s t h a t h e r e x p e r t w i tn e s s ,

D r . K o o n c e , o p i n e d th a t t h e U T p h y s i c ia n s d i d n o t c o m p l y w i t h t h e s t a n d a rd o f c a r e . I n a d d i t i o n , P ie r c e s tr e ss e s t h a t

e v e n D r . P o l k , w h o t e s t i f i e d a s a n e x p e r t o n b e h a lf o f t h e S t a t e , s ta t e d t h a t h e w o u l d h a v e tr e a te d P i e r c e d if f e r e n t l y . F o r

i n s t a n c e , D r . P o l k t e s ti f ie d t h a t h e w o u l d h a v e a d m i n i s te r e d d i f f e r e n t a n t i b i o t i c s p r i o r t o s u r g e r y , h e m a y h a v e

a d m i n i s te r e d a d d i t i o n a l p o s t- o p e r a t i v e a n ti b i o t i c s , a n d h e m a y h a v e s p r a y e d t h e i n c i s io n c i te w i t h a n t ib i o t i c s . M o r e o v e r ,

D r . P o l k s t a t e d t h a t P i e r c e m a y h a v e b e e n m o r e p r o n e t o a n i n f e c ti o n i n l i g h t o f h e r o b e s i t y . D e s p i t e c r e d it i n g D r . P o l k

w i t h t h e s e o p i n i o n s , P i e r c e , n e v e r th e l e s s , d i s p a r a g e s D r . P o l k b y l a b e l i n g h i m a s a p r a c t i t i o n e r o f “ iv o r y t o w e r

m e d i c i n e , ” 2 a c c u s i n g h i m o f p r i m a r il y t e a c h i n g a n d s u p e r v i s i n g a s o p p o s e d t o a c t u a l l y p r a c t i c i n g m e d i c i n e .

                P i e r c e f u r t h e r a s s e r t s t h a t N u r s e A n d e r s o n ’ s n o t e , s ta t i n g t h a t P i e r c e ’ s i n c i s io n a r e a w a s h o t w i t h a r e d s t r e a k ,

i n d i c a te s t h a t t h e U T p h y s ic i a n s s h o u l d h a v e b e e n a w a r e t h a t t h e a r e a w a s in f e c te d . P i e r c e c l a i m s th a t D r . W i l l i a m s

n e g l i g e n t l y f a il e d t o t a k e h e e d o f t h e i m p l i c a t i o n s o f t h e n o t e . P i e r c e a l s o a r g u e s t h a t t h e U T p h y s i c i a n s w e r e n e g li g e n t

f o r f a il i n g t o r e a c t t o t h e l a b o r a t o r y r e p o r t s t h a t d e m o n s t r a te d t h e p r e s e n c e o f E . C o l i i n t h e w o u n d a r e a .


                2
                    As quoted from Dr. Koonce’s testimony.

                                                                                                     10
                When the resolution of the issues in a case depends upon the credibility of witnesses, the

trial judge who has the opportunity to observe the witnesses in their manner and demeanor while

testifying is in a far better position than this Court to decide those issues. McCaleb v. Saturn

Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn.

App. 1997). The weight, faith, and credit to be given to any witness’s testimony lies in the first

instance with the trier of fact, and the credibility accorded will be given great weight by the

appellate court. Id.; In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

                After a review of the record, we conclude that the Commissioner did not err in finding

that the State’s expert, Dr. Polk, was a more credible witness than Pierce’s expert, Dr. Koonce.

It appears that Dr. Polk r e t a i n e d a h i g h e r l e v e l o f e x p e r t i s e o n t h e s u b j e c t m a t t e r b a s e d o n h i s c r e d e n t i a l s . P i e r c e

ta k e s iss u e w ith D r. P o lk ’s te stim o n y th a t th e U T p h y s i c i a n s a d h e r e d t o th e s t a n d a r d o f c a r e w h i le , n e v e r t h e l e s s , sta tin g

t h a t h e p e r s o n a l l y m a y h a v e a d m i n i s te r e d a d d it i o n a l p r e c a u t i o n a r y t r e a tm e n t . T h i s a s s e r t i o n h a s n o m e r it . A s a n e x p e r t

w i t n e s s , D r . P o l k f u l f i l l e d h i s r o l e o f c h a r a c te r i z i n g t h e “ r e c o g n iz e d s t a n d a r d o f p r o f e s s io n a l p r a c ti c e ” i n t h e c o m m u n i t y

o r s i m i l a r c o m m u n i t y . T . C . A . § 2 9 - 2 6 - 1 1 5 ( a ) ( 1 ) . T h e f a c t t h a t D r . P o l k m a y h a v e a d m i n i s te r e d a d d it i o n a l a n t i b i o t i c

t r e a t m e n t s i m p l y m e a n s t h a t h e w o u l d h a v e a c t e d beyond t h e s t a n d a r d o f c a r e . Lewis v. Hill, 7 7 0 S . W . 2 d 7 5 1 , 7 5 4

( T e n n . A p p . 1 9 8 8 ) ( “ T h e t e s t i m o n y o f a p h y s i c i a n a s t o w h a t h e w o u l d d o o r h i s o p in i o n o f w h a t s h o u ld h a v e b e e n d o n e

d o e s n o t p r o v e t h e s t a t u t o r y s ta n d a r d o f m e d i c a l p r a c ti c e .” )

                B a s e d o n t h e g r e a t w e i g h t o f e v i d e n c e p r e s e n t e d b e f o r e t h e C o m m i s s i o n , P i e r c e ’ s p o s t -o p e r a ti v e c o n d it i o n

a p p e a r e d t o b e w i th i n n o r m a l l i m i t s . N u r s e A n d e r s o n ’ s n o t e , m e n t i o n i n g t h a t P i e rc e ’ s in c i s io n a r e a w a s “ r e d h o t w i t h

[ a ] r e d s t r e a k u p t h e u m b i l i c u s , ” a p p e a r s to b e a n a n o m a l y . N o n e o f th e o t h e r h e a l t h c a r e p r o f e s s i o n a l s w h o e x a m i n e d

P i e r c e d u r i n g t h e p e r i o d o f t i m e i n w h i c h t h i s n o t a t i o n w a s m a d e o b s e r v e d t h e s e s y m p t o m s . D r . P o l k t e s t i f ie d t h a t t h e r e

w a s n o c a u s e fo r c o n c e r n s in c e t h e p r a c ti t i o n e r s w h o e x a m i n e d t h e w o u n d a r e a s e v e r a l h o u r s a f t e r t h e n o ta ti o n w a s m a d e

a n d r e p e a t e d l y t h e n e x t d a y d i d n o t n o t ic e a n y c o m p l i c a t i o n s . I n h i s d e p o s i t i o n , D r . P o l k s t a t e d :

                                 I d o n ’ t m e a n to d o w n g r a d e th e v a lu e o f t h e n u r s e ’ s n o te s i n t h e r e , b u t i f
                                 s o m e b o d y l o o k e d a f t e r t h a t a n d s a i d i t w a s o k a y a n d th o u g h t i t w a s a l l r i g h t , t h e n
                                 - - I ’ d h a v e t o a c c e p t t h a t a s s o r t o f c o u n t e rm a n d i n g h e r o r o v e r r u li n g t h e o t h e r
                                 o b s e r v a tio n .

M o r e o v e r , D r . H o w e l l t e s t i f ie d t h a t i n f e c ti o n s a r e in d i c a te d b y r e d s t r e a k s r u n n i n g f r o m t h e w o u n d a r e a to a n a r e a o f

l y m p h n o d e s . T h e l y m p h n o d e s t h a t d r a i n t h e a b d o m i n a l a r e a a r e l o c a t e d i n t h e g r o i n r e g i o n a n d not t h e a r e a a r o u n d

t h e u m b i l i c u s . T h u s , a n y v i s ib l e r e d s t r e a k th a t r a n f r o m P i e r c e ’ s in c i s io n s it e t o h e r u m b i l i c u s w o u l d l i k e l y n o t b e

i n d i c a ti v e o f a n in f e c ti o n .


                                                                                                     11
                P i e r c e a l s o f a i l e d t o s h o w t h a t t h e p h y s i c i a n s s h o u l d h a v e a d m i n i s te r e d a d d it i o n a l a n t i b i o t i c s i n l i g h t o f t h e

l a b o r a t o r y r e p o r t t h a t i n d i c a te d m i c r o s c o p i c p e r f o r a t i o n s o f t h e a p p e n d i x . D r . H o w e l l t e s t i f ie d t h a t a t t h e t i m e o f t h e

a p p e n d e c to m y o n M a y 1 6 , th e a p p e n d ix d id n o t a p p e a r to b e p e rf o r a te d . T h e p e r f o r a tio n s w e re n o t d is c o v e re d b y th e

p h y s ic i a n s u n t i l t h e p a t h o l o g y r e p o r t w a s r e le a s e d o n M a y 1 9 . T h e c u l tu r e o f t h e f l u i d s a m p l e e x t r a c t e d f r o m P i e r c e ’ s

i n c i s i o n s it e d i d n o t g r o w a n y o r g a n i s m s u n t i l “ a f e w e - c o l i ” w e r e o b s e r v e d o n M a y 1 9 . S i n c e t h e s e E - c o li w e r e s e n s i t i v e

t o t h e p r e - o p e r a t i v e a n ti b i o t i c s a n d s i n c e P i e r c e ’ s p o s t - o p e r a t i v e c o n d i t i o n a p p e a r e d t o b e n o r m a l , D r . P o l k t e s t i f ie d t h a t

i t w a s r e a s o n a b l e fo r th e p h y s ic i a n s to c o n c l u d e t h a t a n y E - c o li t h a t m a y h a v e p a s s e d th r o u g h t h e m i c r o s c o p i c

p e rf o r a tio n s in th e a p p e n d i x w e r e d e s t r o y e d b y t h e p r e - o p e r a t iv e l y a d m i n is t e r e d a n t ib i o t ic s . T h u s , D r . P o lk s ta te d t h a t

t h e p r e s e n c e o f a f e w b a c t e r i a w o u l d n o t n e c e s s i t a t e t h e a d m i n i s t r a t i o n o f a d d i ti o n a l a n t i b i o t i c s .

                 S i g n i f i c a n tl y , D r . P o l k a l s o t e s t i f ie d t h a t s i g n s o f a n i n f e c ti o n d i s c o v e r e d a f e w d a y s a f te r t h e o p e r a t i o n w o u l d

n o t n e c e s s a r i l y w a r r a n t t h e i m p o s it i o n o f a d d i t i o n a l a n t i b i o t i c t r e a tm e n t . N o t i n g t h e p o t e n t i a l f o r d a n g e r o u s s i d e e f f e c t s ,

D r . P o l k s ta t e d :

                                  W h e n y o u c o m e o n a f te r th e f a c t, th e y [ a n tib io tic s ] a r e m e a                   s u r a b l y l e s s e f fe c tiv e ,
                                  a n d o f te n t h e n o n l y l e a d t o w h a t w e c a l l s u p e r i n f e c ti o n                 , th e d e v elo p m e n t o f
                                  i n f e c t i o n b y o r g a n i s m s th a t a r e r e s i s ta n t t o t h a t a n t i b i o t i c .      S o I th i n k i f y o u c a n
                                  g e t th e m th e re a h ea d o f tim e , it’s w o n d e rf u l, b u t if y o u ’re                         b r e w i n g a n in f e c ti o n ,
                                  I a lm o s t w o u l d n e v e r sta rt a n tib io tic s la te r a n d a fte r th e fa c                   t. I’d ra th e r le t it p la y
                                  its c o u rs e . . . .

T h u s , D r . P o l k t e s t i f i e d t h a t t h e a p p r o p r i a t e c o u r s e o f t r e a tm e n t , h a d P i e r c e ’ s i n f e c ti o n b e e n d i s c o v e r e d d u r in g h e r in i t i a l

v i s i t , w o u l d l i k e l y h a v e b e e n t h e i d e n t i c a l t r e a tm e n t t h a t w a s e v e n tu a l l y a d m i n i s te r e d w h e n s h e r e t u r n e d o n M a y 2 5 ,

1 9 8 8 : o p e n i n g t h e i n c i s io n , d r a i n i n g i t , a n d c le a n in g i t .

                 T h e p r e p o n d e ra n c e o f th e e v i d e n c e s u p p o r ts t h e C o m m i s si o n e r ’ s fi n d i n g . T h e j u d g m e n t o f th e C o m m i s so n

i s a f f ir m e d . C o s t s o n a p p e a l a r e a s s e s s e d a g a i n s t t h e A p p e l la n t .

                                                                                                                       _________________________________
                                                                                                                       W. FRANK CRAWFORD,
                                                                                                                       PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




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