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Demaria v. City of Bridgeport

Court of Appeals of Connecticut

June 11, 2019


          Argued January 28, 2019

         Procedural History

         Action to recover damages for personal injuries sustained by the plaintiff as a result of an allegedly defective highway, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Hon. William B. Rush, judge trial referee, denied the defendant's motion to preclude certain evidence; thereafter, the matter was tried to the jury; ver- dict for the plaintiff; subsequently, the court denied the defendant's motion to set aside the verdict, and rendered judgment in accordance with the verdict, from which the defendant appealed to this court. Reversed; new trial.

          Eroll V. Skyers, for the appellant (defendant).

          John H. Harrington, for the appellee (plaintiff).

          Lavine, Sheldon and Prescott, Js. [*]


          SHELDON, J.

         The defendant, the city of Bridgeport, appeals from the judgment of the trial court, rendered upon the verdict of a jury, awarding damages to the plaintiff, Victor DeMaria, for injuries he sustained in a fall that occurred on the defendant's sidewalk. On appeal, the defendant claims that the trial court improperly admitted into evidence certain medical records that had been written by Miriam Vitale, a physician assistant who was the plaintiff's primary care provider at the veterans affairs hospital (hospital) in West Haven, under General Statutes § 52-174 (b).[1] We agree with the defendant that the court improperly admitted the medical records written by Vitale into evidence under § 52-174 (b), and that the defendant was harmed by the court's error. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

         The record reveals the following procedural history and facts, as the jury reasonably could have found them. On March 27, 2014, the plaintiff tripped while walking on the sidewalk of Fairfield Avenue in Bridgeport, when he caught his foot on a raised portion of the sidewalk. As a result, the plaintiff fell forward onto his face and hands, causing him to suffer abrasions to his nose and hands, a broken nose and a broken finger on his left hand. Approximately two months after his fall, the plaintiff began to experience a burning sensation in his left arm, weakened grip strength and a limited range of motion in his left hand. He sought medical attention at the hospital, where he consulted neurologists, radiologists, physical therapists, occupational therapists and his primary care provider, Vitale, concerning his symptoms. After the plaintiff had received approximately two and one-half years of treatment, including extensive physical and occupational therapy, Vitale wrote a document for his medical file titled ‘‘Final Report of Injury, '' in which she opined that the plaintiff had reached the maximum potential use of his left hand, he retained only 47 percent of his former grip strength and he continued to experience pain and neuropathy in that hand. She further concluded that ‘‘these injuries were caused with a reasonable degree of medical certainty by the March 27, 2014 accident, [specifically], [to the] left fourth and fifth digit, a permanent disability of neuropathy, as well as left hand permanent weakness occurring as a result of fall and impact of [the plaintiff] during the fall.''

         The plaintiff brought this action against the defendant for economic and noneconomic damages under General Statutes § 13a-149, [2] alleging that his injuries had been caused by the defendant's failure to remedy a defect in its sidewalk, which it knew or should have known would cause injuries to pedestrians. Prior to trial, the defendant filed a motion in limine to preclude the admission of Vitale's treatment records, treatment reports, findings, conclusions, and medical opinions as evidence at trial. The defendant argued that Vitale's medical records were inadmissible under § 52-174 (b) because the defendant would have no opportunity to cross-examine her, either at a deposition or at trial, because she was prevented from testifying by 38 C.F.R. § 14.808.[3]The plaintiff responded that precluding the medical records would result in an injustice to him merely because his treating physician was made unavailable to testify by federal regulation and that that is the very type of injustice that § 52-174 (b) was intended to remedy. After a hearing, the court denied the defendant's motion in limine.

         Following a three day trial, the jury returned a verdict for the plaintiff, awarding him $15, 295.47 in economic damages and $77, 500 in noneconomic damages, for a total award of $92, 795.47. The court denied the defendant's subsequent motion to set aside the verdict, in which it argued, inter alia, that the trial court erred in admitting the medical records written by Vitale because the defendant had had no opportunity to cross-examine her at a deposition or at trial in violation of its common-law right to cross-examination. This appeal followed. Additional facts will be set forth as necessary.

         ‘‘Whether the trial court improperly admitted evidence under § 52-174 (b) is an evidentiary question, and our review is for abuse of discretion.'' Rhode v. Milla, 287 Conn. 731, 742, 949 A.2d 1227 (2008). ‘‘To the extent [that] a trial court's admission of evidence is based on an interpretation of [our law of evidence], our standard of review is plenary. . . . We review the trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law, however, for an abuse of discretion. . . . The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. . . . Thus, [w]e will make every reasonable presumption in favor of upholding the trial court's ruling[s] [on these bases] . . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . . . reasonably [could have] conclude[d] as it did.'' (Internal quotation marks omitted.) Weaver v. McKnight, 313 Conn. 393, 426, 97 A.3d 920 (2014).

         Section 52-174 (b) provides in relevant part: ‘‘In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977, or brought thereafter . . . any party offering in evidence a signed report and bill for treatment of any treating . . . physician assistant . . . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of such treating . . . physician assistant . . . and that the report and bill were made in the ordinary course of business. . . .'' Section 52-174 (b) ‘‘permits a signed doctor's report to be admitted as a business [record].

         . . . [The statute] creates a presumption that the doctor's signature is genuine and that the report was made in the ordinary course of business. . . . Thus, once the statutory requirement that the report be signed by a treating physician [or physician assistant] is met, the evidence in that report is admissible and has the same effect as a business [record]. This does not mean, however, that the entire report is automatically ...

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