DeMaria v. City of Bridgeport

339 Conn. 477

261 A.3d 696

Victor DEMARIA

v.CITY OF BRIDGEPORT

SC 20359

Supreme Court of Connecticut.

Argued June 12, 2020

Officially released June 29, 2021^*

Brenden P. Leydon, Stamford, CT, with whom, on the brief, was John H. Harrington, Stratford, CT, for the appellant (plaintiff).

Eroll V. Skyers, Bridgeport, CT, assistant city attorney, for the appellee (defendant).

David N. Rosen, Philadelphia, PA, filed a brief for the Connecticut Veterans Legal Center as amicus curiae.

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

Opinion

ROBINSON, C. J.

This certified appeal requires us to consider the extent to which a medical record is admissible as evidence pursuant to General Statutes § 52-174 (b)¹ when that record contains an expert opinion and the author cannot be subject to cross-examination. The plaintiff, Victor DeMaria, appeals, upon our grant of his petition for certification,² from the judgment of the Appellate Court, which reversed the judgment of the trial court rendered in accordance with a jury verdict awarding the plaintiff damages for injuries stemming from his fall on a sidewalk of the defendant, the city of Bridgeport. See DeMaria v. Bridgeport , 190 Conn. App. 449, 451, 211 A.3d 98 (2019). On appeal, the plaintiff claims that the Appellate Court incorrectly determined that the trial court should not have admitted into evidence a medical record containing the medical opinion of the plaintiff's treating physician assistant, Miriam Vitale, pursuant to § 52-174 (b), when the defendant was unable to cross-examine Vitale. We agree with the plaintiff and, accordingly, reverse the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following background facts and procedural history. "On March 27, 2014, the plaintiff tripped while walking on the sidewalk adjacent to 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 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 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, retained only 47 percent of his former grip strength and 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 [the] 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-149,³ 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. § 14.808.⁴ 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." (Footnote altered; footnote in original.) DeMaria v. Bridgeport , supra, 190 Conn. App. at 452–53, 211 A.3d 98.

On the first day of trial, the defendant filed another motion in limine, seeking to preclude Vitale's "Final Report of Injury" (final report) on the ground that Vitale was not competent to render an opinion on the permanency of the plaintiff's injuries. The trial court also denied that motion.

"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 [prepared] 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." Id., at 453, 211 A.3d 98.

The defendant then appealed from the judgment of the trial court to the Appellate Court, claiming that "[t]he trial court should have either excluded the entirety of ... Vitale's reports, records, and opinions from evidence or, at the very least, excluded the opinions contained in her records and reports" because the defendant was unable to depose or cross-examine Vitale. DeMaria v. Bridgeport , Conn. Appellate Court Briefs & Appendices, January Term, 2019, Defendant's Brief pp. 3–4. The Appellate Court concluded that the trial court had improperly admitted the medical records under Rhode v. Milla , 287 Conn. 731, 744, 949 A.2d 1227 (2008), in which this court held that certain medical bills were inadmissible under § 52-174 (b) because the defendant did not have an adequate opportunity to cross-examine the treating health care provider. See DeMaria v. Bridgeport , supra, 190 Conn. App. at 455–59, 211 A.3d 98. The Appellate Court further concluded that this error was harmful. Id., at 462, 211 A.3d 98. Accordingly, the Appellate Court reversed the judgment of the trial court and remanded the case for a new trial. Id. This certified appeal followed.⁵ See footnote 2 of this opinion.

On appeal, the plaintiff claims that the Appellate Court incorrectly determined that his medical records were inadmissible under § 52-174 (b) because the defendant was unable to cross-examine Vitale.⁶ Specifically, he contends that there is no "absolute right of cross-examination in civil cases" and that the medical records fall into the category of admissible hearsay evidence that does not require cross-examination because it is inherently reliable and trustworthy. (Internal quotation marks omitted.) The plaintiff also contends that the Appellate Court improperly relied on dictum in Rhode v. Milla , supra, 287 Conn. at 731, 949 A.2d 1227, to support its decision and that, if this court determines that Rhode is binding, we should overrule that decision. Finally, the plaintiff contends that the defendant is barred from seeking relief because it did not adequately pursue its opportunity to cross-examine Vitale by following the procedures outlined in 38 C.F.R. § 14.808. See footnote 4 of this opinion.

In response, the defendant concedes in its brief to this court that all of the plaintiff's medical records were admissible pursuant to § 52-174 (b) "save one," namely, the final report that Vitale authored.⁷ The defendant contends that this medical record was inadmissible because it contains Vitale's expert opinion, it was prepared for use in this litigation and the defendant did not have an opportunity to cross-examine Vitale either in a deposition or at trial. The defendant further contends that the trial court's error was harmful.

We conclude that the medical records that were created in the ordinary course of diagnosing, caring for and treating the plaintiff were admissible pursuant to § 52-174 (b), even if there was no opportunity to cross-examine the records’ author. Because the defendant made no claim and presented no evidence at trial that Vitale prepared the final report exclusively for use in litigation, rather than in the ordinary course of providing care and treatment to the plaintiff, and the trial court accordingly made no finding on that point, we conclude that the Appellate Court incorrectly determined that the plaintiff's medical records were inadmissible.

Whether medical records prepared by a treating health care provider in the ordinary course of providing care and treatment to the plaintiff are admissible pursuant to § 52-174 (b) when the defendant is unable to cross-examine the provider is a question of statutory interpretation to which we apply well established rules of construction and over which we exercise plenary review. See General Statutes § 1-2z (plain meaning rule); Canty v. Otto , 304 Conn. 546, 557–58, 41 A.3d 280 (2012) (general rules of construction aimed at ascertaining legislative intent).

We begin with the text of § 52-174 (b), which provides in relevant part that, in certain civil actions, "any party offering in evidence a signed report ... for treatment of any treating physician ... may have the report ... admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of such treating physician ... and that the report ... [was] made in the ordinary course of business. ..."

Although such medical reports would ordinarily be inadmissible hearsay, § 52-174 (b) permits their admission under the hearsay exception for business records. Accordingly, we have held that the provisions of General Statutes § 52-180,⁸ and the general...