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. [*]
OPINION
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 ...