Orthopedics, like other medical fields, is rapidly advancing, and it is impossible to absorb every study, journal, and technique. While keeping current is crucial, Dr. Nasser Heyrani notes that there is a great deal of pressure to publish, creating a situation where experts need to be selective when choosing the best sources for enhancing their knowledge.

Check out the full episode for our discussion on preliminary calls, changing technology, and breaking down complicated concepts for more understanding.

Episode Transcript:

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Dr. Nasser Heyrani: Harvard Fellowship, Board Certified Orthopedic Surgeon

Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today’s guest is Doctor Nasser Heyrani. Dr. Heyrani is a Harvard Fellowship-trained, board-certified orthopedic surgeon. He is a published contributor to several academic studies, a speaker for national conferences on stem cell regenerative therapies for orthopedic injuries, and an expert witness. Dr. Harani holds an MD from UCLA. Dr. Heyrani, thank you for joining me today at the Round Table.

Dr. Nasser Heyrani: Thank you, Noah, for having me. It’s a pleasure to be here.

Noah Bolmer: Absolutely. Let’s jump into it. You’re an established medical professional, obviously, but a newer expert witness. How did you first learn about expert witnessing and how did you become involved?

Dr. Nasser Heyrani: I first found out more from people reaching out to me. I have been out of all my long training on the road to becoming an orthopedic surgeon for several years. [The training] was about 15 years when you take the residency fellowship, and I did an extra year of research in the middle of my residency. Then, as I got out, I slowly dipped my feet in the water of the Med Legal scene doing qualified medical evaluation work in California and then reached out to establishing relationships with attorneys. Then, I was asked to provide my unofficial opinion with some of my colleagues, that are attorneys, and that became real expert witness work.

Noah Bolmer: Qualified Medical Evaluator- tell me about that.

Dr. Nasser Heyrani: In California, if you have a worker’s compensation case that becomes litigious and you have the defense and the applicant filing the claim, a Qualified Medical Evaluator is someone that gets picked. To become a Qualified Medical Evaluator, you must take an exam and not everyone can do it. [After becoming qualified], you are listed on a panel specific to your specialty. You can have it from internal medicine to whatever specialty. Dentistry, for example. Orthopedic surgery is one of the more popular ones because a lot of work-related claims are musculoskeletal in nature. You are randomly picked throughout the state of California to be the referee on a case. You perform an examination, but your job is not to treat the injured worker. Your job is to provide the medical expertise or medical opinion on- what’s going on with the case. That’s how I was introduced.

Noah Bolmer: That sounds like it’s not so different than the vetting process of a more extreme case, but it’s not so different from the vetting process that expert witnesses go through, right? You must be an expert in your field, and you may be challenged through a schema called the Daubert System. Although California is still a Fry state, it’s a little different for people who are familiar with the different standards. Experts must be able to prove that their expertise is not only general but specific to the fact pattern. You are a neutral person, so it’s [like] the challenge you were mentioning. Let’s talk about that vetting process a little. You receive these calls from attorneys. How does that go and how does that gel with your expectations?

Dr. Nasser Heyrani: Typically, it starts with a conversation where they tell you the specifics of the case. If they’re representing the applicant side or the defense side. I work on either side of the spectrum. They tell you the specifics of the case, and how important the timeline is. If it’s something that needs a quick turnaround you want to make sure you’re available. I have a busy private practice on my own, where I’m seeing and actively treating patients, which obviously helps with being an expert. If you’re treating a patient in the real world, it makes a difference. They tell you the specifics of the case. Obviously, everyone has their own agenda when you’re representing your client. I would say, it’s more of a preliminary call where I give them my unofficial opinion based on what they’re telling me without delving too much into the medical record. I say something [like], “I feel comfortable, it’s within my domain.” If it’s something I feel is not necessarily black and white or would not be comfortable defending or being involved in the case, I will say, “This is something that I don’t feel comfortable with” or “This is beyond the scope of my expertise.”

Noah Bolmer: Do you feel that you have to take a proactive approach in asking the right questions to figure out if you’re the right person for the job, or do attorneys typically provide you the information you need in order to make the determination of whether or not you should accept an engagement?

Dr. Nasser Heyrani: I would say it varies by the attorney. Obviously, the same way that I’m new to this arena. I’m not a seasoned vet by any stretch of the imagination. You have attorneys who have been doing this for a long time. They have extensive medical knowledge because they’ve been doing this for a long time, and they have done a lot of [cases.] They’ve learned from the surgeons they work with in the same way that I learned the legal side of things from the attorneys that I work with. Some of them paint-like, you know, there are no other questions that I need, I’ll say, “I feel comfortable stating my opinion on this.”  A lot of the time they don’t necessarily know what they don’t know, which is why they’re reaching out to you. At that point, that’s where ask some of the appropriate questions without getting into specifics of any specific case. It’s like a dance that you have when you’re working with attorneys because the reality of it is, attorneys have, I would say a bit more experience in law school or when you come out, whereas I don’t think medical students are as aware of the Med Legal side of things when you’re in training. I’m only four years out of my training, so you realize you can get sued from a malpractice standpoint as a surgeon or as a doctor, but this is like a whole new side of the pillow I guess, that you get exposed to when you come out. You don’t have any experience with it. There’s definitely a learning curve.

Noah Bolmer: Absolutely. What are some of the strategies that you can employ or that experts, in general, can employ to be ready and have some idea of the legal framework that they’re going to be in? Do you do outside research? Do you talk to other expert witnesses who have done it? Do you get it through the attorney? What are your strategies?

Dr. Nasser Heyrani: It’s a combination of all of the above. I like to read a lot of general philosophy and business, and I think it was Henry Ford who basically said, “Anyone who thinks they’re an expert, he would avoid working with them.” Obviously, there’s a marketing point because you have to be open-minded. With a lot of these cases, it we- I went into medicine or surgery because the truth is, somebody falls down, the bone is shattered. There’s no denying the fact that their bone is broken, cracked, or they have a bad injury. Now that technology is improving, MRIs are more readily available. I guess it could become easy to paint whatever picture you want and your job on the medical side of some of these cases is to provide the voice, of reason or of science, because other people don’t have the experience or knowledge that you do and really bringing your clinical experience to this. I’ve definitely relied on people who’ve been doing this for a long time, the same way that if I was approaching a tough surgery that I hadn’t done in my residency, or it’s been a few years since I’ve done it. I called my mentors, and I asked them, “What are some pitfalls that I should be aware of?” I think it’s the same thing with this. You build a network, and the more you do, obviously the stronger the network that you reach. Obviously, reading is an opportunity for me to [visit] a clinical diagnosis or clinical scenario that I haven’t dealt with in a long time, or one I’ve dealt with, but I’m trying to learn more. It’s going and reading outside literature or more case studies to be aware of it. Then, have discussions with the attorneys. That’s the nice thing about the expert witness side of things where you can have communication with the attorneys, whereas the Q&E process that I was talking about before, that’s considered expert communication, so you don’t-

Noah Bolmer: Oh, interesting.

Dr. Nasser Heyrani: – you can’t really talk to the attorney because you have to be fair. Whatever communication you’re having, the applicant and the attorney, and the defense side need to have equal opportunity to speak with you through deposition usually. Whereas with this, you can have a little more of an open discussion with their attorney and say, “Hey, this is what I think is going on” and they can educate you on some of the legal aspects of it.

Noah Bolmer: One of the things you mentioned is there changing technology. There are new things happening all the time in the medical field. How do you stay abreast of all of that? You’re a published author, and your opinion has been in medical journals, and you’re a public speaker as well. What happens when something changes? How do you deal with the possibility that you might be impeached on the stand on something that you’ve changed your opinion on, or the science has moved along? How do you keep track of that for one, and how do you stay abreast of what’s new for the other?

Dr. Nasser Heyrani: You hit the nail on the head. I can’t quote the specific numbers, but 50-60 years ago the amount of time it took for medical knowledge to double would have taken years. Now, it’s minutes or days. There’s constantly new information that’s coming out. It’s crazy because there are more journals. You can do a wide critique of academia. To go up the academic ladder, you have to get published. It’s like how much of what is getting published out there is actually useful. Things are getting published to paint either side of whatever argument you want to make. For me, it’s trying to obviously stay informed, but not drown in the new knowledge that is going on. I don’t think it should be a critique if your opinions have changed. You don’t want to be saying one thing and then another to support either argument. If you have a certain opinion that you know- I usually believe that if I see these changes, for example, on an MRI study, “It’s usually indicative of this.” And then you flip flop, I think that’s different than saying, “Now that we’ve learned a little bit more about this clinical diagnosis” for example, “I do believe that this is supported.” You have to constantly be learning. That’s part of your job with anything that you’re doing. Even if you think you’re an expert at something, doesn’t mean you shouldn’t be challenging your opinions and constantly learning.

Noah Bolmer: Let me ask you this. There is an expert, usually on both sides and they will typically have differing opinions. If the attorneys have hired somebody who’s going to help their case in a medical action. If you’re an orthopedic surgeon and there’s an orthopedic surgeon on the other side, how can you both simultaneously be neutral but come to different medical conclusions?

Dr. Nasser Heyrani: It’s different. There are different ways to skin a cat. There are different philosophies in what you believe. Oftentimes if you have ten orthopedic surgeons, you’re going to get a 50-50 split on something that’s not legally related, just medically related. Should they have had surgery or should they not have had surgery? It’s not always black and white. Sometimes it is, right? To make it more straightforward, for instance, a tumor that is going to kill the patient if you don’t take it out. From an ethical standpoint, the patient has a right. From a medical standpoint, most people would agree, you should take the tumor out. It becomes more contentious when you have things that data may support one way or things data may support another way. We’re all a product of our experiences. Where you trained, your clinical judgments are often the patient interactions you’ve had. If you’ve gotten burned with doing certain things one way, then you may be on the other side of the spectrum and you see that’s the beauty of training and residency. You get to sample different flavors. When you come out, you have an amalgam of every experience you’ve had and mentors you’ve learned from across the way. When you’re involved in a Med Legal case, providing the rationale, and explaining it in layman’s terms is second nature to you. It is not second nature for the jury, the attorneys, or the judge. Everything else is being a teacher which is what the word doctor means in Latin. It’s teaching people where your opinions are coming from and leaving the rest for the legal side to figure out.

Noah Bolmer: One of the things we were talking about was keeping track of everything that you’ve ever said on the Internet, which is something that everybody has to deal with these days. As an expert and a medical professional, do you use social media, and if so, what are the pitfalls for expert witnesses and doctors using social media? Are you careful about making sure that things are private or being careful about the way that you express certain things that may come up during a deposition or cross-examination?

Dr. Nasser Heyrani: I’m not on social media myself. I go on Twitter once in a while and I like commenting on sports injuries. Sports is one of my passions. On my Twitter page, I’ll talk about so and so [who is] injured [and how] they feel and I’ll give my opinion. I’m careful about everything that I put out there for the same reasons you mentioned. You’re one click away from having something inflammatory posted about something you stated or didn’t state. At the same time, it’s hard not to market yourself. I would say most of my referrals are now coming from people finding me through word of mouth, Google, and Yelp. It’s amazing how patients are Googling their doctors now. If they have inflammatory stuff about you, then it’s easy to turn patients away. At the same time, you have to have a voice and I don’t think you should be- if you have certain opinions, obviously you can have a disclaimer saying these are my medical opinions, this is not medical treatment I’m giving. One of my life principles is if you’re [always] honest, you don’t have to worry about anything. I don’t know, maybe I’m too naive and not jaded for that yet, but I think that’s usually the best way to go about it.

Noah Bolmer: You mentioned several times [that you] contacted your mentors, people showing you the ropes, and you have a good support system in place. Can you tell me a little about that and whether or not the expectations you had after speaking to these people were met when you first got involved in expert witnessing? Was it the way they said it would be or were there some things that threw a curveball at you?

Dr. Nasser Heyrani: I would say both. One of the first things I learned is you have teachers who teach you in school. Then, the real world teaches you. The only way to get that is to go out there and start doing it yourself. Everything is different. Somebody could warn you the first time you get deposed for example, or you deal with a tough case where your opinion may hurt the other side significantly. You have to be prepared to deal with that. It’s like being thrown into the deep end. At some point, it’s good to be aware of that, but sometimes the only way to get- with surgery, after you go through medical school, you do six years of residency, and one-year of- so seven years doing surgery. But somebody is always there, whether it’s a junior resident, an attendant, or a senior surgeon helping you. When you go out on your own, and you get stuck it’s “My gosh, this is a tough case, and there’s nobody here that I can call. I have to get through this.” It’s the same thing with expert witness work. You have to rest on your laurels and rest on the preparation you’ve done for the case, which is like surgery. Most of the work has been done before. Sometimes you get to the operating room, and it’s just the technical execution. It’s the same thing with expert work.

Noah Bolmer: Let’s talk about your preparations when you’re going to go into a deposition or going to write an expert report.

Dr. Nasser Heyrani: First, is reviewing the case and knowing it like the back of your hand. I’ve been involved with cases that have over 10,000 pages of medical records relevant to a case. Some of them are not relevant at all.

Noah Bolmer: Wow.

Dr. Nasser Hirani: First, you need to tease out the important parts. At that point, you have your first clinical impression, and that’s where being open-minded and not playing devil’s advocate—if you were going to do a counterargument to whatever you’re going to argue. It’s a great debate technique. I was never involved in formal debating, but you want to be prepared for the flip side and look for data to support that counterargument. Then I go and do a published medical literature search. That’s where being involved in research is helpful because, at that point, you’re playing devil’s advocate again and are well-versed in the data. They’ve done a meta-analysis of this clinical problem that’s involved in this case. This is where- it’s not just your opinion; it’s your opinion based on meta-analysis data, which is the gold standard rather than a case study or an expert opinion article, which is kind on the lower rung of the research totem pole.

Noah Bolmer: You mentioned that sometimes you’re overloaded with sixteen trillion pages of medical records when you get involved in a new case. Do you feel that attorneys over-provide you with information prior to a case and that it causes unnecessary billing because you read everything, they give you, or do you feel it’s good for adequate preparation? The more the better.

Dr. Nasser Hirani: I think I would rather have more than less because, yeah, in an ideal world, a lot of the stuff, I would say, is administrative. The problem is it’s a lot of work for the attorneys to go through ten thousand pages of medical records. Being honest and fair, sometimes you can tell them, “This is a lot of records. I don’t know if you have an administrative person to go through this, but I only need the stuff that’s medically related.” I don’t need thousands of medical or physical therapy notes. For example, you could summarize and say they’ve had sessions of physical therapy and [eliminate] a couple thousand pages of the report. That will decrease costs for everyone. The alternative is that you don’t have all the information, which I would say is the worst of the two because you’re not adequately prepared heading into the case if you’re missing a crucial MRI report, or a doctor’s note, or an ER visit report. I would rather have the other problem.

Noah Bolmer: With regard to contracts, when you first accept an engagement, do you have your own form contract that you use or do you negotiate based on a contract provided by the engaging attorney? If so, are there any terms that you like to include?

Dr. Nasser Hirani: For now, it’s just the retainer to start working on the case and making that initial investment. You give me some ideas because I have a flat fee schedule, and if the case goes to settlement you want to make sure you get adequately compensated for your time. It’s nice to have. If the case is going to be protracted over the course of several months, for example, it’s nice to have that open option to bill biweekly or monthly. That’s the learning curve about which I was talking. When treating patients, it is what it is. [There is] a fee-for-service model. I have a standard fee schedule that I send to the attorneys, and it’s like anything else, that’s building that rapport and relationship that you’d hope that if the attorney is seeing this going to settle, they give you a heads up like, “By the way, you can appear-” it’s one thing if this is all you’re doing, but if you’re treating [patients] and have a busy practice, I have to make sure I have enough time spaced out in the week to dedicate because it’s time-consuming if you’re going be do a thorough job on it.

Noah Bolmer: That’s an interesting point. How would you say continuing to work in your field advantages you as an expert witness as opposed to somebody who’s a professional expert witness?

Dr. Nasser Hirani: When you’re just doing this, you get more reps and more experience, but my thought process is that you’re in the trenches when you’re treating patients. Many of these cases are day-to-day things that happen all the time in your practice. When an attorney asks you, “How often have you treated somebody with this condition?” You say, “Well, I don’t really treat anymore.” It’s a little bit different than, “I saw this in my office yesterday and this is how I normally go about it. These are the tests that I do. This is how I would expect a reasonable treatment course to be. These are some of the complications you can have from the procedure.” And also, it just gives you- paints a different picture because you’re not simply looking at things from a legal perspective. You’re being hired or your job is to give your medical opinion. If you’re actively involved in medical practice, I think it’s a little more feasible and easier to give that and you get the experience of being an expert and delivering your medical opinion.

Noah Bolmer: Do you think that it’s more persuasive to the jury?

Dr. Nasser Hirani: I think so. At least the feedback that I’ve [received] early in my career. I can put myself in the jury’s shoes, and if you have someone who is involved in a busy practice and they’re treating the clinical diagnosis that’s in question, it’s more likely to get their feedback.

Noah Bolmer: Let’s move to the more general. What is important and meaningful to you about being an expert witness? Why is this an important job besides just paying the bills? Why is this something important that people should be doing?

Dr. Nasser Hirani: It’s funny. I was talking about it earlier with some of my colleagues. You go through all these years of schooling, right, from college. The generic form of why people go into medicine is that you want to help people. That obviously gets a little more complicated then when you first come out and see how the medical system in the United States [works]. It’s a whole different discussion. Unfortunately, physicians are being compensated less and less. Reimbursement rates are going lower and lower, which is unfortunate. I’m in Southern California where I have my own private practice. The cost of running a private practice is only increasing. What’s nice about being involved in this type of work is that you’re involved in seeking the truth. I’m sure that [is the] why attorneys go into the field that they do. You’re able to provide your years of training, knowledge, and clinical experience to help bring some light into the situation because it’s easy to take something that you don’t know much about and run with it to advocate for your cause. If I’m involved in helping someone on whatever side of the clinical argument by providing [my] medical knowledge. And I also think it makes me a better clinician as well because it forces me to keep up with the literature. Everything is connected and I get enjoyment from playing detective, going through medical records, and trying to help solve the puzzle. “This is what I think is going on.” It is a rewarding part of what I do in my career.

Noah Bolmer: With regard to your relationship with the attorney, what makes for a good expert-attorney relationship, especially for newer experts who haven’t done this a lot and aren’t sure what to expect? What are the things that attorneys should be doing when reaching out to expert witnesses and what are things that expert witnesses should know when getting into the field for the first time?

Dr. Nasser Hirani: It starts with the initial call when you’re getting on the stage with somebody with whom you haven’t worked. It should be an open-door policy while you’re going through the record. If I were the attorney, I would want to know if you see a potential hole in the argument or what they’re asking you to opine on. You want to know, “Hey, there’s evidence of symptom exaggeration in some of these clinical notes.” If you’re asked to go through and give your opinion on something contentious, you want to tell them early on. You don’t want to figure out a month or two into the case that, “Well, actually, I’m not going to be able to defend or argue for this.” That’s the opening parts that go into it. The most successful scenarios I’ve been in are from the beginning, them letting you know, “These are what I think are potential holes in our argument are, what are your thoughts? Is there something that you can address?” Lawyers educate the medical professional on the legal side, and the medical professional educate the attorney on the medical side. Not necessarily to switch roles but really to educate the other side about their role.

Noah Bolmer: How do you deal with all of the technical jargon when you’re dealing with lay people? You mentioned before that some attorneys may be approaching using medical expertise from the number of cases they’ve done in the medical field. Not everybody will be. The jury certainly won’t be, and some judges won’t either. How do you get across the important technical details without burying them in a bunch of jargon that they have no idea what it means?

Dr. Nasser Hirani: The best way is to talk to them as though you were talking to your patient, which is what I’ve learned is the most effective way of communicating with them. If someone has a medical degree, you’re not going to sit there and make analogies to food or cars or whatever. I would say that one of the things I pride myself on and have learned from my mentors is effective communication. It’s telling a story. You’re a storyteller, and how you go about explaining it within medical reasonable probability is using things that they understand and trying to communicate with them that same way. I’ll give a common analogy; a meniscus tear is like a hangnail. The hangnail may not bother you, but if you poke it the wrong way or you dig it into the skin the wrong way [it can cause issues.] The meniscus tear can also cause issues the same way. When I’m explaining things to a patient, knowing your information so well that you can break it down into something understandable, metaphorically.

Noah Bolmer: That’s interesting. So, it requires a lot of knowledge to make it simple for people with no knowledge?

Dr. Nasser Hirani: Definitely. You’re able to get [ ] geniuses by being able to express things in the simplest form possible, and that’s tough. When things get complicated as they do in some of these 10,000 pages of records, for example, it’s a lot of work to synthesize it into something more straightforward.

Noah Bolmer: Before we wrap up, do you have any last advice for newer expert witnesses out there or for attorneys working with newer expert witnesses?

Dr. Nasser Hirani: I would say for people getting into [expert witnessing], it can be intimidating at first, especially when you hear Med Legal together. It can be scary. Most doctors would think of it from a malpractice standpoint. If you come with the perspective we spoke about earlier, where our job is to educate the jury in the same way that we educate our patients. It is the most important thing for a surgeon. My job is to educate my patients not from a paternal standpoint but to have them understand. So, they can make more informed decisions when they’re outside of the 15-20 minutes they’re with you in the office. It’s the same thing with the relationship you have with the attorney. The advice from my attorneys is outside of you working with somebody who’s been doing this for decades. There’s always room for improvement, growth, and effective communication and just realize you’re not necessarily having the same discussion that you would have with an attorney in the same way that I would not have with a physician.

Noah Bolmer: Sage advice. Thank you, Dr. Heyrani for joining me today.

Dr. Nasser Heyrani: Thank you, Noah, for having me.

Noah Bolmer: Of course. Thank you to our guests for joining me for another Discussion at the Round Table. Cheers.

Dr. Nasser Heyrani, MD, Harvard Fellowship, Board Certified Orthopedic Surgeon

Dr. Nasser Heyrani, is a Harvard Fellowship-trained, board-certified orthopedic surgeon. He is a published contributor to numerous academic studies, a speaker at national conferences on stem cell regenerative therapies for orthopedic injuries, and an expert witness. Dr. Heyrani holds an MD from UCLA.