FILED

June 12, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

 ______________________________________________

BARBARA PIERCE, 

Claimant-Appellant,

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, 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
2

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,
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 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
4

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 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 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 postoperatively.

 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
5

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 temperaturesoften 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 appendectomiesin his capacity
6

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 themoststrict 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, postsurgical 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-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, 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-
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 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 postoperative 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
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

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 successfullyeliminated 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
9

 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 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 acceptableprofessional

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 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 ers o 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 i cal 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 i cal 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 i cal 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 i cal 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 s
2

 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 i c 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 i o 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 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 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 i ch 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 Pi e 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 e n 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 i o 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 i o 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, JUDGE