# FILED

June 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ BARBARA PIERCE, Claimant-Appella

nt, Tennessee Claims Commission No. 96-015 Vs. C.A. No. 02A01-9710-BC-00245 STATE OF TENNESSEE, 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, JU DGE

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

) appeals from t

he judgment of the Claims Commisi on for defendan

t, State2

of Tennessee. Pier

ce 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 treatme nt 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 bas

ically alleges tha

t the defendant, U

niversity of Tenne

ssee, through its employees, breached the recognized standard of acceptable p

rofessional pra

ctice in its

medical
treatment thus resulting in a severe infection that necessitated further

hospitalization, expense, pain, and suffering. The Commissioner’s excellen t order pr ovides 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, presente

d 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 Tenne ssee thorough the University of Ten

nessee Memphis Health Science Center (UT). Immediately prior to surgery, the claimant was given intrave n ous 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, butshowed no evidence of gangrene or perforation. Both the appendix and a swab of the fluid surrounding the appe ndix were sent to the laboratory for analysis. The incision was irrigated and closed, and the clai mant wa s sent to the recovery room and then, during the early hours of May 17, 1988, transferred to

her hospital room. Initial laborat ory repor ts received by the physicians on May 18, 1988, indicated no

active bacteri

a in the fluid specimen. The microscopic

examination of the

appendix and t he culture of the fluid specimen took several days to complete. Throughout her ho spita l recu peration, the claimant was examinedand/or tre ated by various physicians and medical students from UT. The cl aimant was primarily treated by Dr. Keena Williams, a medica

l resident who fir

st 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. Wo ods, who was a third-year medical student at UT. Following her surgery, the claimant experienced fever which pe aked nea r 103.5° at 6 p.m. on M ay 17, 1988 but dec

lined to 99.4° by the time of her discharge from the hospital on May 20,3 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 no

rmal. By the date of her discharge from the hospi t al, her white bloo d cell count had fa

llen to approximately

8,000, a range which is somewhat high but which is generally cons

idered 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 ant

i biotics except those administered immediately prior to surgery. Treatment notes and nurses notes reflect that the examinations o f the claimant’s incision revealed a normally-healing wound, withone 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 p rior to the claimant’s d ischarge on May 20, 1988 desc ribed the wound as

heali n g normally, and stated that the “wound look[ed] good.” On May 19, 1988, the claimant’s physic

ians received vi

a telephone the final results of the microscopic examination of the appendix and the culture of he fluid specimen which were taken during surger y. The written report followed on May 20. Notes ma de by Bryan L. Woods on May 19, 1988, state that the laboratory h ad d iagnosed the appe ndix as having “ac

ute s uppurative appendicitis with multiple areas of microscop i c purulent perforation,” which, defi ned in laymen’s terms, is an appendix with microscopic perforations (tears or holes) a nd 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 ant

ibiotics. The claimant was released from the hospital on May 20, 1988, withroutine instructions on wound care , fol low-up visits, and symptoms which would requi re immediately me

dical att ent ion. S he was given a prescription for pain medication, bu t n o prescription for

antibiotics. On May 25, 1988, the claimant retur ned to the hospital complaining that her wound had burst open and wa

s seepi ng a purulent discharge. Dr. Keena Williams examined the claimant’s incision and determined it to be infected. T he 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 s econd 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 com mo n complication of appendectomies is infection o f the surgical wound (incision), and that such infections are most often the result of bacteria having leaked into the wound from the infected4 appendix, either before o r during surgery (

while the infecte

d appendix is being removed f

rom the abdominal cavi ty through the surgical incision). The parties’ expert witnesses agr ee d that the risk of wound infection increases with the severity of the inflammation of the appendix. (T here are four stages of appendicitis: (1) In the first stage, the outside of the appendix ap pea rs mildly red with bright blood vessels; (2) In the second stage, the entire appen

dix is inflamed, red and

swollen; (3) In the third stage, the appen

dix develops micro

scopic perfora

tions; and (4) in the fourth stage, the appendix develops visual spots of gangrene (pus) and visual perforations or ru ptures. The risk of infection increases wi th eac h stage of appendicitis because the bacteria are more lik

ely to escape from the perforations and the pu s.) The parties’ expert witnesses also agreed that the preoperative 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 in fection in the surgical wound, the experts agreed that the claimant was “brewing an infection” when

she was release

d from the hospital. The parties primary differences arise over whether or not the claimant should have bee n administered antibiotics postoperatively. Pursuant to T enn. Code Ann. § 29-26-115(b), both parties presented medical experts who testifie d on the issues of the standard of accept able professional practice and whether or not the defendant’s emp

loyees committed ma

lpractice in fai

li ng to administer post-op

erative antibioti

cs to the claimant. The claimant’s expert witness, Dr. Marshall L. K oonce, is a semi-retired

physician licensed to practice in the Stat e of Tennessee. His area of e xpertise 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 p rivate

practice in 1969. Dr. Koonce practiced med icine full-time until 1986, when he underwent hip surgery and was unable to r eturn to active practice. He has, however, continued to see a few patients on a limited basis, and has maintained subscrip tions to several respe cted medical jour

nals. 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 c are in Memphis and Shelby Co

unty 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 app endectomy patients is to administer pre-operative antibiotics and, in most cases, to administer post-operative antibiotics, especially to pat ients who exhib

it s ymptoms of infection and to those

deemed to be at high risk for infection. He testified that patie

nts sh ould be observed for elevated body temperatures,

wound inflammation, elevated wh ite blood cell counts, and any other obvious indicators of infection. According to Dr.

Koonce, th

e pre-oper ative antibiotics5 administered to the claimant were, by themsel

ves, insufficien

t to combat t h e risk of infectio

n, especially in lig

ht of her obesity which, in his opinion, placed her at a higher risk of contracting an infection. He stated that he would have administer ed antibiotic drugs to the claimant “for a few days after s urgery” as a preventative measure. In support of his position, h e stated that “one shot of antibiotics has very little effect,” and pointed out that the fluid specimen obt

ained during the su

rgery eventuall

y cultured e-coli bacteria; He maintained this was a clear indication that the pre-operative

antibiotics had been inadequate to destroy bacteria and pr e vent 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 fu rt her opined that (1) the claimant’s elevated body temperatures, (2) the red streak in her surgical wound, and, (3) the lab report wh ich shows t

hat her appendix was microscopically

perforated

and that e-coli bacteria grew in the specimen of the fluid outside the a ppendix were indicators of infection and warranted the administration of post -operative antibiotics to combat the infe ction. He testif

ied th at during an infectious process, body tem peratures oftenelevate then drop, and stated that, in his opinion, the clai ma nt’s body temperature re adings were consistent with the pattern often seen du ring a n infe ctious process. He stated that her symptoms would hav e prompted him to prescribe antibiotics, keep her in the hospital for a few more d ays, 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 re cords from the hospital, it was his opinion that the cl a imant’s infection in the appendix (which was the reason for the s urger y), the microscopically

ruptured appendix, her obesity, her fever, her red streak and the wound culture

which showed e-c

oli bacteria were all indications that an

tibiotics should

have been administered post-operatively. In this deposition Dr. Koonce determined that the wound culture was a culture of the actual surgic al 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. How ell dur ing surgery on May 16, 1988.) The defendant’s expert witness, Dr. Hira m C. Polk, Jr., is a medical instructor and is chairmanof the Department of Surgery at Louisville School of Medicine. He received his medical degree from Harvard Univer

sity in 1960, and completed his residency at Barnes Hospital in St. Louis, Missouri, in 1965. Since that time, Dr

. Polk has taught at sc

hools of medicine i

n Florida, Misso

ur i and Kentucky. He has authored approximately 300 articles in the medical field, and has co ntributed chapte

rs to vario

us medical textbooks. His areas of surgical specialization are the esophagus and certain kinds of c

ancer, but his lif

etime research interest has been matters related to infection in surgery. Many of his articles pertain t o wound c are. He has been a practicing surgeon for 28 years, has supervised thousands of appen dectomies in his capa city6 as an instructor, and

has personally

rendered care to hundreds of private appende

ctomy patients. Dr. Polk advised tha

t it is virtually

impossible to remove an appendix without co ntaminatin

g the surgical wound, and reported that 10%-30% of appendectomy patients develop surgical wound infections despite the most st rict precautions. (Dr. Koonce opined that Dr. Polk’s figures were high. Although Dr. Koonce did not h ave the statistics, he t

estified that he ha

d seen the infect

io n reports from Baptist

Hospital and that infection rates were lower there.) Dr. Polk described the standard of care of appe

ndectomy patients as follow

s: First, ap pendicitis 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 littlemanipulation as possible. Secondly , antibiotic treat ment should be administered to reduce the risk of infec tion. T hirdly, postsurgical patients should be c losely monitored for symptoms of infection

. F ourth, pathologica l studies should be pe

rformed to determine whether bacteria from the infected appe ndix had contaminatedthe abdominal cavity. Finally, the wound should be carefully closed. Dr. Polk opined that

the claimant’s ap

pendiciti s was timely diagnosed, and that her

appendectomy was performed as soon as was practicable. Based upon the surg eon’s notes,

Dr. Polk found no evidence that the surgeon had breached the accepted standards of care during the c

la imant’s surgery or during closure of the surgical wound. In his op inion, the proper pathological testing was performed. With regard to antibiotic drug treatment in general, Dr . Pol k testified that the accepted standard of care dictated the administration of antibiotics prio r to appendectomies, but stated that post-operative antibiotics should be prescribed on a case-bycase 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, Gen

tamycin and Clindomycin, were, according to D r . Polk, the most commonly-used combination of antibiotics administered prior to appendectomies.

Dr. Polk t esti fied that although he, personally, preferred a different ant

ibiotic combina tion, he felt he was in a minority and found no fault with the types of antibiotics sued or th e dosa ges 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 pri or to co ntamination,” but that they are “measurably

less effective once contamination occurs.” Dr. Polk tes tifie d that, in cases such as the claimant’s where a visual inspection of the appendix r eveals no perfo

rations o r gangr ene, his pers onal preferenc

e is to administer a

ntibiotics prior to surgery, and “a dose or two ” during the hours

i mmedia

tely 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 physici an who chose not t

o administer post-7 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 s ta ndard of care in choosing notto admin is ter post-operat ive antibiotics to th

e claimant as a routine course of action. With regard to pos

t-operati ve symptoms, Dr. Polk testified that physicians gener

ally look to the following areas to determine an appendectomy pa

tient’s progress: ( 1) Does the patient feel better? (2) Are his/her intestines working? (3) Has his/her body temperatur e d eclined? (4) Has the white blood cell count declined? Dr. Polk stated that satis factory answers to all four questions in c oncert would lead a physic ian to determine th

at a patient was doing OK and that the course of treatment should not be altered. Dr. Polk testified that, according t o the claimant’s medical records, she was feeling better by the date of release from her initial hospitalizatio

n and had commented to the nurses that she wantedto 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 so

me concern that the claimant ran a fever of 1 01° the night before her discharge. However, he stated that , since all of her other

symptoms were essentiall y 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 a sked her to be sure and call [him] if s

he had any tr

ouble. Additionally, on the date of her discharge, he

r temp erature 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 wou

ld not have prevented the infection, nor would i t have al tered the eventual treatment of

the infection (in o

ther words, if the wound i nfection had been discovered prior to her release from th e hospital, the treatment

of the wound infection at that t ime would have been the same as the treatment she received d uring h er second hospitalization). With regar d to the i ssue of the claimant’s obesity and the additional risk it posed, Dr. Polk testified that t here is arguable data on the impact of obe

sity with op erative wound inf ections. He stated that most physici a ns believe obesity makes one more prone to infection. Nevertheles s, Dr. Polk advised that the claimant’s obesity would not ha ve prompted him to or

der postope rative antibiotics. He stated that when closing the sur gica l wound, he might have used an antibiotic

spray, but added that the data on the effectiveness of such spr ays 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 Nurs e Anders on, Dr. Polk stated that he wou

ldhave “worried about it” and would have “wondered

what it was.” He testified that redness around surgical1 Relevant portions of this text state: Antibiotics are administered preoperatively to help control any local or gene

ralized sepsis tha

t may be present a

nd 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 ove

r approximately th

e past decade is c

learly in favor of antibiotic administration. Antibiotics probably are of minor benefit unless the appendix is gangrenous or has perforated. . .

. Hence, we admi

nister antibiotics

to all patients suspected of having appendicitis but continue administration intraoperatively and postoperatively only in those patients demonstrated to ha

ve complicated a

ppendicitis. * * * Antibiotic therap

y should not be conti

nued post-opera

tively 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 n

ot been administer

ed for 48 hours pr

ior 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

staples is common, but a red streak w ould be unusual. He advised that he would have examined the wound, himself, an d if he had seen nothing unusual, he woul d have discharged the claimant with instructions to c

all him or return to the hospi

tal if trouble arose. He testified that he woul d not ha ve 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 ba cteria, Dr. Polk testified t hat neither of the

se finding s would have prompted him to administer additional antibiotics. He stated that by the timethe 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 wo uld 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 instr uctions to call him sh

ould 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 Surg ery, filed as Exhibit 12. 19 In summary, Dr. Koonce opined that the UT physicians erred in (1) failing to admi

nister post-oper

ative antibiotics a

s a prevention against infection , especially

in light of her obesity, (2) failing to administer

post-operative antibiotics in response to her symptoms o f

an elevated body temperature and redness at the incision s ite, and (3) failing to administer post-operative antibiotics in response

to the pathology laboratory’s finding of ecoli 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 profe ssional practice. He d eemed pre-operative antibiotics a necessity, but believedt hat post-operative antibiotics are optional, depending upon the patient’s condition. According to Dr. Polk, he saw nothing in th e claimant’s medical records which would have caused him to recommend additional antibiotics or to alter the course of the treatment ordered by th e UT physicians. Further, Dr. Polk opined that the t

reatment given to

the claimant

upon her return to the hospital was the correct treatment and was the same tr eatment she would have received if the infection had been discovered during her first hospitalization. A fte r c onsi deri ng the evi dence p res ent ed, t he C o m m i s s i oner f oun d t hat D r . Po l k’s t est i m ony w as “m o r e

com pel l i n g t han D r . K oon ce’ s test i m o n y.” T h e C o m m iss ione r ex pre ssl y f ound t hat D r .Pol k ’ s c r edent i a l s were supe r i o r t o t hose of D r .K oonce. I n addi t i on, t he Com m i s s i oner st a t ed: D r

.K oon ce’ s t est i m ony canno t be given as m

uch cred e n c e as D r . Pol k ’ s f o r sever a l fac t ual rea sons .D r .K oonce opi ned t hat t he cl a i m ant shoul d have rec e i ved po st- o p erati v e an t i bioti cs in resp o n se to h er sy m ptom s of an el eva t e d body t e m per a t u r e and r ednes s a t t he i nci s i o n site . W ith re g a r d t o r ednes s a t t h e i n c isio n s ite , h e es p e c ially s tress e d tha t nu rse M ary A n d erso n ’s n o te o f M a y 19t h des c r i b i n g t he cl a i m ant ’ s sur g ical w ound as “r ed hot w i t h [ a ] r ed s t r eak up t o t h e u m b i l i cus ” should have al ert

ed t he U T phy s i c i ans t o t he presence of i

nfect i on in t h e cl a i m ant ’ s sur g ical w ound. M s . A nder son’ s not e i s t he onl y i ndi cat i on i n t h e m edi cal r ecor ds t hat t he s t apl e s at t h e in c isio n site w e r e r ed or t hat t he cl a i m ant had a r ed s t r eak o n he r abdom en. A f t e r nur s e A nder son’ s obs e r vat i on, t h e i n c isio n w as ex a m i ned a t var i ous t i m e s by ot her nur s e s a nd doct o r s , w i t h t h e f o llo w i n g no tes: “[N ]o e vide n c e o f draina g e or p uffiness, ” “s

k i n w a r m , dr y , ” “ i n t act and dr y” and “ w ound l ooked good. ” D r

.K enna W i l l i a m s t est i f i ed t hat she r ece i ved nur s e A nder son’ s m ess age conce r n i ng t h e r ed s t r eaks at t he cl a i m ant ’ s i nci s i on, and t hat she exam i ned t he i nci s i on on M ay 19t h and M a y 20t h , pr i o r t o t he cl a i m ant ’ s d i schar ge. A c c o r d i n g to D r. W illia m s, th e w ound app ear ed t o be a n orm a l sur g ical w oun d , w i t h no si gns of excessi

ve r ednes s or fever

.Sh e saw no red strea k on t he cl a i m ant ’ s a bdom en, and does not kno w w hat nurse A nderson m a y have se en, w i t h t he pos s i b l e exc ept i on of a s t r e t ch m a r k , or a m a r k l e f t by t h e sur g ical t ape w h i ch had he l d t he dr e s s i n g in p l a c e . A lso , D r. P o l k te stif i e d th a t h e ha d n e v er see n a str e a k a s de scribed by nu rse A n d erso n . T h e re w as no red s trea k at t he i nci s i on w hen the cl a i m ant ret urned t o t he ho spi t a l on M ay 25. I t m u s t be conc l uded t hat t h i s r ed s t r eak w a s not an i ndi cat o r of i n f ect i on i n t h e sur g i cal w ound. W ith r egar d t o t he f i ndi ng of e- col i bact e r i a i n t h e fl u i d speci m en, as set out abov e , D r . K oon ce i ncorr ect l y beli eved t hat t he fl u i d speci m en w as obt a i ned and anal yze d po s t - s urgi cal l y by B ryan W ood s w hen, i n fact , t he speci m en w a s2 As quoted from Dr. Koonce’s testimony. 10 obt a i ned dur i ng t he s u r ger y and w a s anal yzed by t he pat hol ogy l abor a t o r y . C onse quent l y , t he C l a i m s C o m m i s s i on foun d t hat t he U T physi c i ans adher ed t o t h e st andar d of car e i n t hei r t r eat m ent of Pi erc e and d i s m i s s ed t he cl a i m . T h i s i s a di rec t appeal f rom t he T ennessee C l a i m s C o mmi s s i o n and i s gove r ned by Tennes

s e e Rule s of A ppell a t e Procedu re, T

. C

. A

.§ 9-8-403 (a)

(1) (Supp

.199 7). Since t h i s i s a nonjur y case, i t i s r evi e w ed de novo upon t h e rec ord w i t h a presum p t i on o f cor rec t ness of t he C o m m i s s i oner’ s f i ndings of f act

.T . R . A . P . 1 3 ( d ), Sanders v. State , 783 S. W

. 2d 948, 951 ( Tenn. A

pp.1989)

. T h e sol e i s s ue on appeal i s w het her t he evidence prepond era t e s ag ainst t h e C lai m s C o m m iss ione r’s f inding t hat t he cl a i m ant fai l ed t o show t hat t he S t a t e em p l oyees did not

conform t o t he st andard of car

e . A pl a i n t i f f i n a m edi cal m a l p r act i ce s u i t car r i e s t he bur den of pr ovi ng t he f o l l o w i ng: ( 1 ) Th e r ecogni zed s t andar d of acc ept abl e pr o f e s s i onal pr act i ce i n t h e pro fession and the sp e c ial ty t h e reo f , if an y, t h a t t h e de fen d a nt pra cti c e s in t he com m uni t y i n w h ic h he pr act i ces or i n a sim i l a r com m uni t y at t he t i m e t he al l eged i n j u r y or w r ongf u l act i on occur r ed; ( 2 ) T hat t he def endant act ed w i t h l e s s t han or f a i l ed t o act w i t h or d i nar y and r eas onabl e ca r e i n acc o r dance w i t h suc h st andar d ; and ( 3 ) As a pr oxi m a t e r e s u l t of t he def endant ' s ne g l i gent act or om i s s i on, t he pl a i n t i f f suf f e r ed i n j u r i e s w h i ch w oul d not ot her w i s e have oc cur r ed. T . C

. A

.§ 29- 26- 115 ( a )

( 1980)

. P ierc e contends t hat she sat i s f i ed her bur den of pr oof i n t he i nst ant ca se. Pierce n otes that he r ex p e r t w i t n e ss, D r . K oonce, opi ned t hat t he U T physi c i ans di d not com p l y w i t h t he s t andar d of car e .In addi t i on, Pi erc e st res ses t hat

even D r .Pol k , w ho t e s t i f i ed as an expe r t on behal f of t he St a t e , st a t ed t hat he w oul d have t r eat ed Pi e r ce di f f e r ent l y . For i nst ance, D r . Po l k t est i f i ed t hat he w oul d have a d m i n i s t e r ed di f f e r ent ant i b i o t i c s pr i o r t o sur ger y , he m ay have adm i n i s t ere d addi t i onal post

- oper a t i ve ant i b i o t i c s , and he m ay have spr ayed t h e i nci s i on cit e w i t h anti b io t i cs. M oreover, D r

. Po l k st a t ed t hat Pier ce m ay hav e been m ore pr one to an i n f ect i on i n l i ght of her obes i t y . D e s p i t e cr edi t i ng D r . Pol k

w ith these op ini o n s , P ierce, ne v e r t h e less, dispa rag es D r . P o l k by l abel i ng h i m as a pr act i t i oner of “i vory t o w e r

m edi c i ne, ” 2 accusi ng h i m of pr i m ari l y t eachi ng an d supervi s i ng as op posed to act ual l y pract i c i ng m edi c i ne. P ierc e further asse r t s that N urse A n d erso n’s n ote, st ati n g that Pierce ’s i n c isi o n area w as h o t w i t h a r ed s t r eak, i ndicat e s t hat t he U T phy s i c i ans should have been

aw are t hat t he are a w as i nfect ed. Pier ce cl a i m s t hat D r . W i l l i a m s negl i gent l y fai l ed t o t ake heed of t he i m p l i cat i ons of t he no t e .Pier c e al so ar gues t hat t he U T physi c i ans w e r e negl i gent for fai l i ng to r eact t o t he l aborat ory r eport s t hat dem onst rat ed t he presence of E.

C o l i i n t he w oun d area.11 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 a nd 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 tr ier 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 ned a hi gher l evel of expert i se on t he subject m a t t e r based on hi s cr edenti a l s . Pier c e t akes iss u e w ith D r. P o l k ’ s te stim o n y th a t th e U T ph ysicians a d h ered to t h e stand ard of c are w hil e, nev ertheless, sta tin g t hat he per sona l l y m ay have adm i n i s t e r ed addi t i onal pr eca u t i onar y t r eat m ent

. T h i s as ser t i on h as no m eri t

.A s an expert

w itn e s s , D r. P o l k fu lfille d h is r o l e of char act e r i z i ng t he “r ecogni zed s t andar d of pr o f e s s i onal pr act i ce” i n t he com m uni t y

o r sim ila r c o m m u n ity . T . C . A . § 2 9 - 2 6 - 1 1 5 (a ) ( 1 ). T h e fa c t th a t D r . Pol k m ay have adm i n i s t e r ed addi t i onal ant i b i o t i c t r eat m ent si m p l y m eans t hat he w ould have acte

d beyond t he s t andar d of car e . Lewis v. Hill ,

770 S. W

. 2d 751, 754 ( Tenn. A pp.1988) ( “The t e s t i m ony of a phys i c i an as t o w hat he w oul d do or hi s opi n i on of w hat shoul d have be en done does no t prove t he st a t u t ory st andard of m edi cal pract i ce. ” ) B ased on the g reat w eigh t of ev iden c e pre sen ted b efo re the C o m m iss ion, P ierce’s po st- o per a t i ve condi t i o n appeared t o be w i t h i n no r m a l l i m i t s . N urs e A nderson’s note, m ent i oning t hat Pier ce’ s i nci s i on area w a s “r ed hot w i t h [a] red s t rea k up t he um b i l i cus, ” appears t o be an anom a l y . N one o f t he other heal t h care prof ess i onals w ho ex a m i ned P ierc e dur i ng t he per i od of tim e i n w h ich t h i s not a t i on w as m ade ob ser ved these s y m p t o m s . D r . Po l k t est i f i ed t hat t here

w a s no cau se f or concern si nce t he pract i t i oners w ho ex a m i ned the w oun d area se ver a l hour s a f t e r t he not a t i on w a s m ade and repeat edl y t he nex t day d i d no t noti ce any co m p l i cat i ons. In hi s deposi t i on, D r . Po l k st a t ed: I d on’ t m ean t o dow ngr ade t he val ue of t he nur s e ’ s not e s i n t her e , but i f som ebody l ooked af t e r t hat and sa i d i t w a s okay and t hought i t w a s a ll rig h t, th e n

- - I’d have to acc

ept t hat as s ort of counter m anding her or over

rul i ng the ot her obse r vat i on. M oreover, Dr

.Ho w e l l t est i f i ed t hat i nfect i ons are i ndicat ed by red s t rea ks r unn i ng fr o m t he w oun d area t o an area of l y m p h nod es. The l y m p h nodes t hat dr a i n t he abdom i nal ar ea a r e l ocat ed i n t he gr o i n r egi on and not t he ar ea a r ound t h e um b i l i cus .Thus, any vi s i b l e r ed s t r eak t hat r an f r o m Pie r ce’ s i nci s i on si t e t o her um b i l i cus w oul d l i kel y not be i ndi cat i ve of an i n f ect i on.12 P ierc e also fail e d to sho w that t h e ph ysicians sh o u ld h ave a d m i n i s t e r ed addi t i onal ant i b i o t i c s i n l i ght of t h e l abor a t o r y r epor t t hat i ndi cat ed m i c r osc opi c per f o r a t i ons of t h e appen d i x . D r . H o w e l l t est i f i e d th a t a t th e tim e o f th e appende c t o m y on M ay 16, t he appe ndi x di d not appea r t o be per f o r a t ed. The per f o r a t i ons w e r e not di s c over ed by th e physi c i ans u n til th e pat hology report

w a s rel eased on M ay 19

.T he cult ure of t he fl u i d sam p l e ext rac t ed fr o m Pier ce’ s i n c isio n si t e di d no t grow any o rgani s m s unt i l “a f e w e-c o l i ” w ere observed on M ay 19

.Since t

hese E-col i w e r e s ens i t i v e t o t he pr e - oper a t i ve ant i b i o t i c s and si nce P i erc e’s post -oper a t i ve con d i t i on ap peared t o be n orm a l , D r . Po l k t est i f i ed t hat i t w as r easonable f or t he ph ysi c i ans t o con c l ude that any E -col i t hat m ay have pa s s ed t h r ough t he m i c r osc opi c per f o r a t i ons in th e ap p en d ix w ere d estroy e d by the p re-op erati v e ly ad m ini stered a nti bioti cs. T hus, D r . Po l k st a t ed t hat the p resen c e of a few ba cteri a w o u ld no t nec essit

ate the a d m ini str ati o n of a d d i t iona l anti bioti cs. S i gni f i cant l y , D r . Po l k al so t est i f i ed t hat si gns of an i nfect i on d i scovered a f e w days aft e r t he oper a t i on w oul d not nece s s a r i l y w a r r ant t he i m posi t i on of addi t i onal ant i b i o t i c t r eat m ent

.N o t i ng t he pot ent i a l f o r danger ous side e ffects, D r . Pol k st a t ed: W hen you com e on aft e r th e fac t , t hey [ant i b io t i cs] are m easur abl y l ess eff ect i ve, and oft en t hen o n l y l ead t o w hat w e ca l l su p eri n f ect i on, t he deve l opm ent of i n f e c tio n by or gani s m s t hat ar e r e s i s t ant t o t hat ant i b io t i c .So I t h i nk if you can get t hem t her e ahe ad of tim e , it’s w o n d e r f u l , but i f you’ r e br e w i ng an i n f ect i on, I al m ost w ould never sta rt a n tib i o tic s la t e r a n d a fte r th e fa c t. I’d ra t h e r le t it p l a y its c o u r s e . . . . Thus, D r . P olk testi f i e d that t h e ap pro priate co urse of t r eat m ent , had P i erc e’s i nfect i on b een dis covered du r i ng h er i n i t i a l

v isit, w oul d l i kel y have be en t he i dent i cal t r eat m ent t hat w a s event ual l y adm i n i s t e r ed w hen s he r e t u r ned on M ay 25, 1988: openi ng t he i nci s i on, dr a i n i ng i t , and cl eani ng i t

. T h e pr eponder ance of t h e ev iden c e sup p o r t s the C o m m iss ione r’s f inding

.T h e judg m e n t of t h e C o m m iss o n i s af f i r m ed. C ost s on app eal are ass ess ed against t he A ppell ant

.

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

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE