I am including this story here because it ties into my prostate cancer journey. I have been sued twice (I won both) and have been an expert witness once. I have told my wife for years that I was an expert in this and that, and she always says, “You are not an expert.” I say, “I am if I want to be.” When I was asked to be an “expert” for another urologist in a malpractice lawsuit, it was official. I was an expert. The plaintiff in the case had had prostate cancer. I was asked to be the expert witness in 2006, which was before I knew I had prostate cancer. It is not uncommon for medical lawsuits to take years to develop, so by the time this case came around for court, I was about a year beyond having my prostate removed. When the lawyer called to tell me the date of my deposition (a fact-finding, pre-trial questioning of the major players in a lawsuit), I told him, “I have good news. I have prostate cancer. Feel free to use the knowledge of this if you think it will help the case.” I then asked, “Should I mention that I have prostate cancer to the lawyer at the deposition?” The lawyer said, “Only if he asks.” The deposition was done at my office, the plaintiff’s attorney never asked, and I did not mention the fact that I had prostate cancer. I felt that a jury would value my testimony much more given the fact that I had been through a little of what the patient who was suing had experienced. The date of the trial was finally set, and I began to review all the depositions in earnest. I then began to worry that if I messed up with anything I said, it could hurt the urologist I was supposed to be helping. A friend of mine, who is an attorney, had come to hear my testimony several years ago at the first of my two lawsuits. At lunch following the testimony I had asked him how he thought I did. “You talk too damn much, McHugh.” I had a fear that in this case I would “talk too much,” and I told the attorney that. He arranged for me to meet and be advised by a “Jury consultant”, not to be told what to say, but to learn how to say it and what to emphasize in my testimony. We talked about the case in general, and I asked some questions about how he might use my prostate cancer history. “I can get pretty graphic with what I’ve been through if you think it would help.” “Dr. McHugh, we basically have two types of expert witness: the professorial type and the type that has passion. You are the passionate type.” He then adds, turning to look at the attorney, “Bill, he’s good; he’ll do well for you.”
Something I had learned from my having been sued was that the attorneys try to make out the expert witness to be a “hired gun” who is only there to say what he is told for money. I remember my attorney asking the expert witness testifying against me how much he made an hour and how much he was paid to fly to Gainesville and back from St.Louis. The questioning went on and on so that the point was not lost on the jury. I remember my attorney leaning on the jury box as “their” expert witness explained all the money he was to make coming to our “small southern town to testify against one of our doctors.” It was beautifully executed by the attorney, I remember this vividly, and I did not want that to happen to me. I told the attorney who asked me to be the expert that I planned to give the money I make to my church and I asked, “In general how much money do I make for doing this?” He gives me a broad range of a per-hour fee for the time spent reviewing the medical history and the depositions. I was not told nor did I request specifics of how much I would be paid, and I purposely did not want to receive any funds for my services before the case.
On the day of the trial, I was supposed to be “called” in the morning but it was changed at the last minute to the afternoon. “The plaintiff’s attorney is going painstakingly slow,” I was told. The significance of this delay was huge. I was able to review almost all of the depositions a second time, particularly the plaintiff’s deposition. I found some very revealing quotes in my second review that I had not seen initially. As I had been formulating my strategy over the last few weeks before the trial, re-reviewing his deposition was invaluable. The quotes he had used in his deposition fit in nicely with what I had intended to use as an argument. I had seen them before, but seeing them after I had time to digest all the information about the case allowed me to use them in their rightful and most powerful perspective. (I viewed my role in all this not as testifying against the plaintiff, but rather, testifying that what the urologist did was within the standard of care. In other words, would I have done the same thing if I had been in the exact same situation? It is hard to criticize decisions made by another in the heat of battle.)
My heart is pounding away outside the courtroom, and I was thinking that I didn’t want to mess up. I kept reminding myself: I know urology, I know prostate cancer, and I know the specifics of this case. As I waited, I began to look again at their expert witness’s deposition, and I saw where he was quizzed about how much he charged for his expert services: “$250 an hour for reviewing depositions, $350 for my office deposition, and $5000 for my in-court testimony.” Of course the attorney asked the questions several times in different ways in order for it to hit home with the jury, just like I remember him doing it years ago. He then asked, “Portal to portal?” The expert witness said, “Yes.” Then the attorney asked, again for the benefit of the jury, “Portal to portal meaning that you are reimbursed separately for airfare, food, and accommodations, is that right?” The expert said, “Yes.” I could see it in my mind’s eye the attorney leaning on the jury box rail and looking back and forth between the expert and the jury as if to say, “That’s a bunch of money, makes you wonder if he is an expert just for the pay.” I was really getting into this particular deposition and enjoying the gamesmanship of the attorney when I heard someone announce, “Dr. McHugh, they are ready for you now.”
No sooner did I sit down and do the pledge stuff, worrying that I’d use the wrong hand, the plaintiff’s attorney wants to know if I had been paid anything and how much was I going to charge. “I don’t know what I will be charging.” He says, “You mean to tell me you don’t know what you will charge?” “Yes, sir, I don’t know, I have never done this before.” Once I got over the dry mouth (and I mean parched dry) and the nervousness that preceded my testimony, I was fine. It so happened that I saw the bailiff as a patient several weeks later and he commented,”Doc, I filled up your water pitcher more times than I ever had before! Man you were one thirsty doctor that day!” In fact, I enjoyed testifying, particularly when he asked me a question in which the urologic premise was wrong. On several occasions he asked a question in which the details were incorrect. I would answer but only after telling the attorney that the number of days he referred to was wrong or that “that’s not the appropriate terminology for what you are wanting to express.” He kept using “urinary retention,” which implies that a patient cannot void at all, when what he needed to say was “obstructive voiding symptoms.” I was impressed, and it gave me confidence, that he had a very bad working knowledge of urology; I may have been in “his territory” by being in a courtroom, but he was clearly in my territory regarding the subject matter of the questioning. I enjoyed testifying from that point on, correcting several of his questions and then answering them in a favorable fashion for our case by using the exact quotes from the plaintiff that I had read in his deposition just minutes before. I was disappointed that it came to an end. Things would have gone on longer had it not been for the plaintiff’s lawyer acknowledging that Thursday was the night the judge went out to eat. The judge agreed and said “Why don’t we wrap things up counselor.”
Reflecting later that evening, although initially I thought I did alright, I began to think that maybe I had been “clever by half.” What if the jury thought I was too cocky or that I talked too much? Then it dawned on me that I had not played the “prostate cancer card.” I just forgot about it. I began to go over the whole testimony in my mind, answering the questions much better and throwing in something about “I wore a catheter too; I know how he feels.” About this time, and with me beating myself up and telling my wife that I probably did talk too much, the phone rings. It is the urologist calling to tell me that the trial would conclude tomorrow, and he’d call me with the results. He then added, “John you were great, the way you used your hands and those quotes, where did you come up with those things?” I asked, “You don’t think I talked too much? I can’t believe I did not mention the fact that I have prostate cancer.” “No you did fine, thanks for agreeing to do what you did; I’ll call you tomorrow with the verdict.” The next day he called and told me that the jury found in his favor. About a week later I received a letter from the attorney telling me that my testimony played a large role in the favorable verdict and for me to submit my bill. I email the attorney’s legal assistant and again asked her for advice as to what to charge. She responded that most doctors bill around $250-$350 per hour for the time they spend on a case.
Around about this time, I had another legal issue come up regarding a business matter, and I had sent a contract to a lawyer in Atlanta to review. What the lawyer did was review the contract I sent him and then send me a bill for three hours of reviewing the contract, but he did not advise me about the contract. In other words, I guess, if I want to know what he thinks about his review, I would have to ask him about that and then get another bill for him to tell me. Then it dawned on me how I should handle my bill for being an expert witness. I needed to think like an attorney, not a doctor. After about a month of “pondering” my charges, I decided submit a bill that was the same as the other expert witness. When I sent it in I prefaced the itemized expenses with, “I have decided to charge what the guy that lost charged.” I got my check a few days later, my wife and I added a little to it, and it covered my commitment to my church for that year. As my mother would say, “God works in funny ways.”