On June 1, 2010, claimant Jodi Brewer, 51, a small business owner with a history of lower back pain and sciatica, presented to Palomar Medical Center in San Diego for an anterior, interbody fusion from L3 to L5 and a bilateral, posterior laminectomy to be performed by Dr. Jeffrey Schiffman, an orthopedic surgeon. Brewer’s lower back condition had worsened over the years, causing her to present to Schiffman on May 10, 2010. Based on his exam of Brewer, Schiffman’s impression was that she had three-level lumbar spondylolisthesis and right sciatica. An MRI also confirmed severe spinal stenosis. As a result, Schiffman recommended the anterior lumbar fusion and posterior laminectomy. The posterior laminectomy followed the anterior fusion, in which bone dowels were used with the intent to create stability in the spine. However, during the surgery, dural tears were created in several spots. Schiffman admitted that he created at least three dural tears during the procedure and that he made several attempts to perform a primary repair by suturing the dural tears closed, but that he was unable to do so because Brewer’s dura was “paper thin.” As a result, Schiffman controlled the bleeding in the area with thrombin-soaked Gelfoam, a hemostatic surgical agent, and thrombin spray. Thus, rather than suturing the dural tears, Schiffman used a DuraPatch, which he cut to size and laid over the dura, and then held the DuraPatch in place by covering the entire patch area with two layers of DuraSeal, a synthetic hydrogel intended to provide a watertight seal of a dural repair. According to the intraoperative records, Schiffman used two 5-milliliter syringes of DuraSeal during the procedure. After the laminectomy and dural repairs were completed, Schiffman proceeded with the second part of the surgery from the anterior approach. Both the anterior and posterior parts of the surgery were done in less than five hours. Following the surgery, Brewer had a new onset of symptoms, including numbness from her waist to her mid-thigh, tingling in both of her feet and her buttocks, numbness in her perirectum/perineum, and an inability to void or have a bowel movement. As a result of the sudden onset of new symptoms and the fact that Schiffman’s physician’s assistant, Jim Marte, P.A., was concerned that Brewer may have developed a post-operative ileus, Marte obtained an internal medicine consult with Dr. Daniel Harrison, who diagnosed Brewer with an ileus. Brewer was subsequently given suppositories to facilitate bowel movements, but when her catheter was removed on June 4, 2010, she was unable to urinate. Brewer ultimately failed multiple urine trials and left the hospital on June 7, 2010, unable to urinate on her own. As a result, she was discharged with a catheter and Foley bag, and had to continue to use suppositories to have bowel movements. Brewer then continued to follow up with Schiffman throughout the summer, during which she reported that she developed heavy pressure and severe pain in her rectum, along with saddle anesthesia, which is numbness around the groin, perineum, and buttocks, as well as a loss of feeling in her vagina. Finally in July 2010, Schiffman ordered an MRI, at the insistence of Brewer, which showed a mass lesion at the L4-5 level. Subsequent films, including a CT myelogram and MRIs, also showed the mass lesion, but Schiffman felt there was no need to reoperate. When Brewer’s symptoms continued to advance, along with pain in her legs and heaviness in her feet, she became frustrated with her situation and began investigating further work-up of her issues. As a result, she insisted on a CT myelogram, which was done Sept. 17, 2010, which alleged revealed a large mass in her lumbar spine with a complete blockage of contrast material at the L4-5 level. Brewer then returned to Schiffman for the last time on Sept. 20, 2010, accompanied by a friend, and in response to Brewer’s frustration of her current physical condition, Schiffman allegedly simply told her to sue him. At this point Brewer sought treatment with other surgeons and physicians, who tested her sphincter muscle and found it to be very weak. A colorectal surgeon then confirmed that Brewer’s inability to defecate was due to a neurologic injury. An urologist also opined that Brewer had a neurogenic bladder, causing her inability to void. There was no dispute that Brewer now suffers from cauda equina syndrome, causing dysfunction of her bowel, bladder and sexual function, in addition to chronic pain. In November 2010, Brewer underwent a subsequent surgery by Dr. Sanjay Ghosh to remove the mass. Brewer claimed that Schiffman negligently repaired the dural tears, causing the large mass. She also claimed that mass subsequently caused the nerve compression, and that Schiffman had an opportunity to post-operatively diagnose and repair the nerve compression before her nerve injury became permanent, but that he failed to do so. Brewer sued Schiffman; Marte; and Schiffman’s medical office, Jeffrey S. Schiffman, M.D., Inc. Brewer alleged that Schiffman failed to properly perform the initial procedures, causing the dural tears, and then failed to properly repair the tears he caused. She also alleged that Schiffman and Marte failed to timely diagnose and treat her condition, and that Schiffman’s office was vicariously liable for their actions. In addition, Brewer alleged that the respondents’ failures constituted medical malpractice. The case against Marte was ultimately dismissed, and the matter proceeded to arbitration against Schiffman and his medical office only. Claimant’s counsel contended that Schiffman caused the dural tears during the anterior lumbar fusion and posterior laminectomy and that he negligently controlled the bleeding in the area with thrombin-soaked Gelfoam, a hemostatic surgical agent that is known to expand and is specifically contraindicated for use during a laminectomy. Counsel also contended that Schiffman did not suture the DuraPatch in place, as the product’s instructions for use recommended, and covered the entire patch area with two layers of DuraSeal, a product known to expand up to 50 percent or more over the course of several weeks after it is placed. Thus, counsel contended that Schiffman’s use of the DuraSeal also did not conform to the manufacturer’s instructions and warnings. Claimant’s counsel noted that Schiffman’s written history and physical of Brewer makes no mention of any pre-existing cauda equina syndrome, but contended that Schiffman was aware that Brewer was at an increased risk for post-operative complications, including cauda equine, as a result of the dural tears and the manner in which he repaired them. However, counsel contended that regardless of Schiffman knowing this, the doctor never did any type of examination to work up the potential complications. Counsel asserted that, in fact, Schiffman saw Brewer the day after the surgery and ordered her to lie flat due to the dural repair, but did not perform an examination to check for saddle anesthesia or perineal numbness, which, along with bowel or bladder dysfunction, are common findings associated with a developing cauda equina syndrome. Claimant’s counsel also asserted that despite Brewer developing these new symptoms, no radiographic studies were ordered by Schiffman or Marte to evaluate any post-operative problems. However, counsel noted that Marte ultimately obtained an internal medicine consult with Harrison, who diagnosed Brewer with an ileus and prescribed suppositories to facilitate bowel movements, due to Brewer’s new symptoms. Marte testified that he was aware of the post-operative signs and symptoms of a developing cauda equina/compression of spinal nerves, and that it could be a time-sensitive problem. He also testified it would have been his custom and practice to report these symptoms to Schiffman, even though he was out of town. However, Brewer’s counsel contended that despite this, Schiffman did not call in the spinal surgeon who was covering for him while he was gone. Brewer claimed that after she was discharged from the hospital, she continued to follow up with Schiffman throughout the summer because she was given the impression that her inability to void and defecate after the surgery was a normal complication that should resolve over the next few months. However, she claimed that she ultimately insisted on an MRI after she began to feel heavy pressure and severe pain in her rectum, along with saddle anesthesia and loss of feeling in her vagina. Claimant’s counsel contended that the mass lesion that was shown on the initial MRI and subsequent films was described by multiple physicians, including treating physicians, as creating compression of nerves from inside the dura, outside the dura, or both, but that despite those suspicious findings, Schiffman felt there was no need to reoperate, causing Brewer’s symptoms to continue to advance. In addition, claimant’s counsel contended that after Brewer became frustrated with her condition and underwent a CT myelogram on Sept. 17, 2010, a large mass in her lumbar spine was revealed with a complete blockage of contrast material at the L4-5 level. Counsel contended that when Ghosh performed the subsequent surgery in November 2010, he found a large amount of what he described as “tissue glue,”made up of a foreign substance, probably DuraSeal, blood and scar tissue, and determined that this was causing compression and narrowing of the spinal canal at the L4-5 level. Ghosh also opined that the mass of gel was large enough to deflect and deform the dura in a significant manner. Counsel also noted that Ghosh’s other findings included a herniated nerve rootlet and nerves encased in scar tissue, plugging the dural defect and effectively sealing it. Thus, claimant’s counsel presented expert testimony that these findings are not consistent with a properly performed dural repair. Schiffman claimed that the dural tears were known complications of the anterior lumbar fusion/posterior laminectomy procedure and that he did a proper repair of the tears. He also claimed that there was no evidence of compression after the surgery and, therefore, no delay in dealing with the problem. Schiffman further claimed that many of Brewer’s problems were as a result of a pre-existing condition. The respondents’ counsel contended that Schiffman did not suture the DuraPatch in place, as would be his preference, because the dural tissue was too friable to accept a stitch. Counsel also contended that, as testified to by all experts, the Dura Seal product is dispensed through a “y” channel in which its two components become mixed as they are being dispensed via pressure on a dual plunger apparatus and that once the surgeon stops the pressure, the components stop being dispensed. Counsel further contended that the Dura Seal product immediately hardens in the “y” channel so that the dispenser and the remainder of the Dura Seal in the unit must be wasted and that after the application of the Dura Seal, a Valsalva maneuver, which is an attempted exhalation against a closed airway, is performed to confirm that there is no leakage. The respondents’ counsel asserted that if, as in the subject case, there is a persistent leak, a second dispenser of the Dura Seal must be opened to use as a spot sealant. Thus, counsel contended that the total volume of the Dura Seal used includes that portion of the first 5-milliliter dispenser necessary to cover the entire Dural Patch and that small portion of the second dispenser necessary to be used as a spot sealant for any leak and that there was no evidence that 10 milliliters of Dura Seal was placed in the wound. The respondents’ counsel disputed that Schiffman never did any type of examination to work up the potential complications, as the post-operative notes specifically confirmed that Schiffman performed a perineal exam of the patient and noted that Brewer’s perineum was intact to light touch. Counsel contended that following the surgery, Brewer did demonstrate urinary retention, which was explainable by her pre-operative injury to the same nerves manifested by urinary incontinence, and that Brewer’s post-operative numbness and tingling were established by three different observations in which the condition was noted to be “as before surgery” and/or “better than before surgery.” Counsel further contended that the bowel issue was proven to be the result of an ileus, which resolved before Brewer was discharged from the hospital, and the perineal and perirectal numbness were specifically reported to pre-exist the surgery, as the patient herself told the internist, Harrison, when he examined her for these problems on June 4, 2010. In addition, the respondents’ counsel contended that Harrison took a history of the patient’s then-existing symptoms, including her perineal/perirectal numbness, and did a comprehensive neurological examination. Counsel asserted that Harrison then confirmed the persistence of the perineal/perirectal numbness, and specifically confirmed with the patient that she had suffered from urinary incontinence and from the same perineal/perirectal numbness as before the surgery. Thus, counsel noted that Harrison diagnosed Brewer with pre-existing cauda equine syndrome and an ileus, and did not order imaging or request additional consults since all of the neurologic symptoms were deemed to be pre-existing. Thus, Schiffman claimed that he did not call in the spinal surgeon who was covering for him while he was gone because Harrison said it was simply a medical issue and the covering spinal surgeon was not needed to consult. However, Harrison adamantly denied telling Schiffman that a covering surgeon was not needed to consult, but he admitted that he had no recollection of any conversation he had with Schiffman. In addition, Schiffman claimed that although he did not call the spinal surgeon who was covering for him on Friday, a different orthopedic surgeon who was covering his rounds over the weekend and did, in fact, see Brewer. In addition, the respondents’ counsel contended that the history and physical, as well as the initial office visit notes, specifically included reference to the patient’s pre-operative urinary incontinence and numbness of her labia and rectum, all hallmarks for cauda equine syndrome, and the initial office visit plan included ordering a pre-operative MRI to determine the cause of Brewer’s cauda equine syndrome. Counsel further noted that when told of Schiffman’s pre-operative findings, an independent examiner, the same spinal surgeon that was covering for Schiffman while he was away, acknowledged that the patient did have cauda equine syndrome pre-operatively. Thus, the respondents’ counsel asserted that there was no issue of time sensitivity, as there were no recurrent leg symptoms and the cauda equina symptoms pre-existed the initial surgery. Counsel also asserted that all clinicians, including Marte, Harrison and at least three nurses, confirmed the findings, which included perineal numbness and tingling in the buttocks and feet, all pre-existed the surgery and were not “new” symptoms. The respondents’ counsel contended that as a result, no radiographic studies were ordered by Schiffman or Marte, or by Harrison, or by the orthopedic surgeon who rounded on the patient over the weekend, to evaluate the alleged post-operative problems. Counsel further asserted that each radiologist who interpreted the July 2010 films, as well as the subsequent films that included a CT myelogram and MRIs, consistently interpreted the mass lesion as being arachnoiditis, a neuropathic disease caused by an inflammation of the arachnoid. Accordingly, Schiffman claimed that he felt there was no need to re-operate, as arachnoiditis is not amenable to surgical resolution. Lastly, the respondents’ counsel asserted that Ghosh’s conclusion that the “mass” was made up of a foreign substance was specifically contradicted by the findings and testimony of a pathologist, who found no foreign material in the specimen that Ghosh described as “tissue glue.” In addition, Ghosh admitted that when he removed what he described as the compressive mass, there was no “rebound” of the thecal sac, of any kind, as one would see if, in fact, the mass was compressing the thecal sac., Brewer claimed that she suffers from cauda equina syndrome as a result of Schiffman’s negligence. She also claimed that she now has arachnoiditis, which causes normal nerve roots floating in cerebral spinal fluid to become inflamed, clump together and become sticky. She alleged that this is usually caused by trauma associated with spinal surgery. The claimant’s counsel contended that cauda equina syndrome means that every couple of hours, Brewer needs to catheterize herself in order to urinate and that if she doesn’t, she will have an accident. Counsel also contended that the only way Brewer is able to have a bowel movement is by digitally disimpacting her bowel. Thus, Brewer claimed that the neuropathic pain and pressure on her rectum are debilitating at times. She also claimed that she is afraid of having an “accident” in public places and in front of people she knows, and is embarrassed when she does. Brewer also claimed that she has chronic neuropathic pain in her legs and must use narcotic drugs on a daily basis in an effort to deal with the pain. In addition, she claimed she suffers from sexual dysfunction due to the saddle anesthesia she experiences. Thus, Brewer, at age 51, claimed she will never be the same, as every aspect of her life has changed and she is now plagued by chronic, intractable pain. Prior to Schiffman’s surgery, Brewer ran a small business for many years in which she provided concrete pumps to construction businesses. She worked as a dispatcher for her company, taking calls from contractors, scheduling drivers for the pumps, and doing general administrative work and invoicing. However, Brewer claimed that she is no longer employable in the open market and is effectively incapacitated from any meaningful employment. Thus, she claimed that she suffers from a loss of her earning capacity as a result of the cauda equina syndrome, arachnoiditis and associated chronic, intractable pain. Brewer sought recovery of $2.05 million in total damages. The respondents’ counsel asserted that Brewer’s cauda equina syndrome pre-existed the surgery performed by Schiffman and that the bowel issue was proven to be the result of an ileus, which resolved before Brewer was initially discharged from the hospital. Counsel also asserted that Brewer’s perineal and perirectal numbness were specifically reported to pre-exist the surgery, and that many of Brewer’s problems were as a result of a pre-existing condition. Thus, the respondents’ counsel contended that if Brewer was to be awarded anything, the assessment of Brewer’s damages only totaled approximately $1 million.