DeMaria v. City of Bridgeport

         Argued January 28, 2019

         Appeal from the Superior Court, Judicial District of Fairfield, William B. Rush, Judge Trial Referee.

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

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

         Lavine, Sheldon and Prescott, Js.^[*]

          OPINION

         SHELDON, J.

         [190 Conn.App. 451] 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. [190 Conn.App. 452] 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,

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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 [190 Conn.App. 453] 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 ...