DeMaria v. Bridgeport ( 2021 )

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VICTOR DEMARIA v. CITY OF BRIDGEPORT
(SC 20359)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn and Ecker, Js.
Syllabus
Pursuant to statute (§ 52-174 (b)), ‘‘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 physi-
cian . . . and that the report . . . [was] made in the ordinary course
of business.’’
The plaintiff sought to recover damages, pursuant to the municipal defective
highway statute (§ 13a-149), from the defendant city for personal injuries
he sustained when he fell on a city sidewalk. After his fall, the plaintiff
received treatment for certain symptoms from a number of medical
professionals, including his primary care provider, V, at a Veterans
Administration hospital. V ultimately wrote a final report for the plain-
tiff’s medical file, in which she concluded that his injuries, namely, a
permanent disability of neuropathy and permanent weakness in his left
hand, were caused with a reasonable degree of medical certainty by
the fall. Prior to trial, the city filed a motion in limine to preclude the
admission of V’s treatment records and reports, as well as her medical
opinions and conclusions, on the ground that they were inadmissible
under § 52-174 (b) because the city would have no opportunity, either
at a deposition or at trial, to cross-examine V, who was precluded from
testifying by virtue of the applicable federal regulation (38 C.F.R. § 14.808
(2017)) prohibiting Department of Veterans Affairs personnel from pro-
viding testimony in certain legal proceedings. The trial court denied that
motion, and, on the first day of trial, the city moved to preclude the
admission of V’s final report on the ground that V, a physician assistant,
was not competent to render an opinion on the permanency of the
plaintiff’s injuries. The court denied that motion, as well. The jury
returned a verdict for the plaintiff, and the trial court rendered judgment
in accordance with the verdict. The city thereafter appealed to the
Appellate Court, which reversed and remanded the case for a new trial,
concluding that the trial court had improperly admitted the plaintiff’s
medical records under Rhode v. Milla (287 Conn. 731), 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. On the granting of
certification, the plaintiff appealed to this court. Held that the Appellate
Court incorrectly concluded that the plaintiff’s medical records and V’s
final report, which were made and maintained in the ordinary course
of the business of diagnosing, treating and caring for the plaintiff, were
inadmissible under § 52-174 (b) on the ground that the city was unable
to cross-examine V: § 52-174 (b), which was enacted to avoid the expense
and delay caused by procuring the testimony of a treating physician,
permits the admission of medical reports, which otherwise would consti-
tute inadmissible hearsay, under the hearsay exception for business
records, the statutory (§ 52-180) business records exception to the hear-
say rule, by expressly providing that business records are not rendered
inadmissible by virtue of a party’s failure to produce the author or to
show that the author was unavailable, specifically contemplates that
the opponent of the proffered evidence need not be given the opportunity
to cross-examine the author of the record, and, to the extent that Rhode
and its progeny, including Milliun v. New Milford Hospital (310 Conn.
711), suggested that an opportunity for cross-examination of the author
of a medical record prepared for purposes of the diagnosis, treatment
or care of a patient is an absolute prerequisite for the admission of such
record, this court disavowed that proposition; moreover, the city did
not claim or present any evidence in the trial court that V’s final report
was prepared in contemplation of litigation, and the mere fact that the
final report contained V’s opinion on causation and the permanency of
the plaintiff’s injuries did not establish that the report was not prepared
for purposes of the diagnosis, treatment or care of the plaintiff.
Argued June 12, 2020—officially released June 29, 2021*
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiff as a result of an allegedly defec-
tive highway, and for other relief, brought to the Supe-
rior 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 case was tried to the jury; verdict for
the plaintiff; subsequently, the court, Hon. William B.
Rush, judge trial referee, denied the defendant’s motion
to set aside the verdict and, exercising the powers of
the Superior Court, rendered judgment in accordance
with the verdict, from which the defendant appealed
to the Appellate Court, Lavine, Sheldon and Prescott,
Js., which reversed the trial court’s judgment and
remanded the case for a new trial, and the plaintiff, on
the granting of certification, appealed to this court.
Reversed; judgment directed.
Brenden P. Leydon, with whom, on the brief, was
John H. Harrington, for the appellant (plaintiff).
Eroll V. Skyers, assistant city attorney, for the appel-
lee (defendant).
David N. Rosen filed a brief for the Connecticut Veter-
ans Legal Center as amicus curiae.
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 opin-
ion and the author cannot be subject to cross-examina-
tion. 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 stem-
ming 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 defen-
dant 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 plain-
tiff 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, radiolo-
gists, physical therapists, occupational therapists and
his primary care provider, Vitale, concerning his symp-
toms. After the plaintiff received approximately two
and one-half years of treatment, including extensive
physical and occupational therapy, Vitale wrote a docu-
ment 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 defen-
dant 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. 452–53.
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 perma-
nency of the plaintiff’s injuries. The trial court also
denied that motion.
‘‘Following a three day trial, the jury returned a ver-
dict for the plaintiff, awarding him $15,295.47 in eco-
nomic 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., 453.
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 opin-
ions 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. 455–59.
The Appellate Court further concluded that this error
was harmful. Id., 462. Accordingly, the Appellate Court
reversed the judgment of the trial court and remanded
the case for a new trial. Id. This certified appeal fol-
lowed.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 defen-
dant 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. 731, 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 opportu-
nity to cross-examine Vitale by following the proce-
dures 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 pre-
pared 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 con-
tends that the trial court’s error was harmful.
We conclude that the medical records that were cre-
ated 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 provid-
ing care and treatment to the plaintiff, and the trial
court accordingly made no finding on that point, we
conclude that the Appellate Court incorrectly deter-
mined that the plaintiff’s medical records were inadmis-
sible.
Whether medical records prepared by a treating
health care provider in the ordinary course of providing
care and treatment to the plaintiff are admissible pursu-
ant 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 ascertain-
ing 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 admis-
sion under the hearsay exception for business records.
Accordingly, we have held that the provisions of Gen-
eral Statutes § 52-180,8 and the general legal principles
that govern the admission of business records; see
Conn. Code Evid. § 8-4;9 apply to medical records that
fall within the scope of § 52-174 (b).10 See Struckman v.
Burns, 205 Conn. 542, 548, 534 A.2d 888 (1987) (because
medical records are admissible as ‘‘ ‘business entries,’ ’’
§ 52-180 (b) applies to them). ‘‘The initial rationale for
the [business records] exception was that, although
hearsay, business records [are] trustworthy because
their creators had relied on the records for business
purposes.’’ (Internal quotation marks omitted.) Jenzack
Partners, LLC v. Stoneridge Associates, LLC, 334 Conn.
374, 390, 222 A.3d 950 (2020).
‘‘The statute [allowing the admission of business
records]11 expressly provides that business entries
[that] are admissible under it shall not be rendered
inadmissible by reason of the failure to produce as
witnesses the persons who made them. It contemplates,
therefore, that there need be no opportunity afforded
to cross-examine those who made the entries if as a
matter of fact the entries are admissible as business
entries under its provisions.’’ (Emphasis added; foot-
note added.) D’Amato v. Johnston, 140 Conn. 54, 62,
97 A.2d 893 (1953); see also United States v. New York
Foreign Trade Zone Operators, Inc., 304 F.2d 792,
795–96 (2d Cir. 1962) (‘‘[although] hearsay, business
records were believed to have been prepared by meth-
ods and under circumstances that made them more
trustworthy than other hearsay, and therefore business
records could safely be admitted into evidence as tend-
ing to prove the transaction recorded without the [truth
testing] provided by a cross-examination of the maker
or keeper of the records’’); Troyan v. Reyes, 367 Ill.
App. 3d 729, 733, 855 N.E.2d 967 (2006) (‘‘In order to
fulfill the foundational requirements of a business
record, it is not necessary that the author or creator
of the record testify or be cross-examined about the
contents of the record. . . . [T]he circumstantial prob-
ability of their trustworthiness is a practical substitute
for cross-examination of the individual making the
entries.’’ (Citation omitted; internal quotation marks
omitted.)); cf. Struckman v. Burns, supra, 205 Conn.
550–51 (‘‘hospital records, including medical opinions
contained therein relevant to diagnosis . . . may be
admitted into evidence without the testimony of the
persons who made the entries even in a criminal pro-
ceeding, and . . . this procedure does not violate a
defendant’s right of cross-examination’’ (citation omit-
ted)); State v. Jeustiniano, 172 Conn. 275, 280, 374 A.2d
209 (1977) (‘‘The defendants also assign error to the
admission of the hospital record on the ground that
they were denied an opportunity to cross-examine the
persons who made the entries. This claim is without
foundation in the law. The legislature, in General Stat-
utes § 4-104, has specifically made hospital records
admissible without supporting testimony.’’).
Indeed, the very purpose for which § 52-174 (b) was
enacted was to avoid the delay and expense that
obtaining the testimony of the author of the medical
record would entail. As this court stated in Lopiano v.
Lopiano, 247 Conn. 356, 752 A.2d 1000 (1998), § 52-174
(b) ‘‘serves the purpose of getting medical evidence
before the jury in the absence of the treating physician.
. . . The need for this statutory exception allowing for
a substitute for testimony was clearly driven by eco-
nomics due to the necessity for medical evidence in
every personal injury action for damages.’’ (Citation
omitted.) Id., 383; see also Bruneau v. Seabrook, 84
Conn. App. 667, 671–72, 854 A.2d 818 (‘‘[t]he rationale
for allowing self-authenticating documents from physi-
cians in personal injury . . . actions is to avoid trial
delays due to the difficulty in scheduling doctors’
appearances; especially because in the majority of cases
the physician’s testimony is consistent with his treat-
ment report’’ (internal quotation marks omitted)), cert.
denied, 271 Conn. 930, 859 A.2d 583 (2004).
Nevertheless, we recognize that, notwithstanding this
case law, this court has, on a number of occasions,
suggested that medical records are not admissible pur-
suant to § 52-174 (b) if the defendant is unable to cross-
examine the author. In Struckman v. Burns, supra,
205 Conn. 544, the trial court admitted certain medical
records prepared by several of the plaintiff’s out-of-
state chiropractors and dentists. The defendant con-
tended that the statute applied only to medical prac-
titioners within the state, as out-of-state practitioners
were beyond the reach of the court’s subpoena power.
Id., 545. This court observed that the statutory text
did not require the practitioner to be available ‘‘in the
jurisdiction’’; id., 546; and that, during the debate on
the proposed legislation, the legislature expressly con-
sidered out-of-state practitioners to be covered by the
statute. Id., 547–48. The court concluded that ‘‘§ 52-
174 (b) characterizes such medical reports as ‘business
entries’ and the legislature in . . . § 52-180 (b) has pro-
vided that such business entries ought not be rendered
inadmissible either by a party’s failure to produce the
person or persons making the writing or by a party’s
failure to show that such persons are unavailable as
witnesses. . . . [Section] 52-174 (b) permits the admis-
sion of the medical reports and bills of nonresident
treating medical practitioners even if they are beyond
the subpoena power of our courts, and cannot be called
to testify at a trial.’’ Id., 548.
The defendant in Struckman also argued that, if § 52-
174 (b) allows the admission of medical records even
if the defendant is unable to cross-examine the author,
the statute would violate his right to cross-examination
under the federal and state constitutions. Id., 548–49.
Specifically, although the defendant conceded that the
hospital bills that had been admitted as evidence were
admissible because they were prepared in the ordinary
course of business and, therefore, were presumptively
reliable, he contended that the medical reports that
had been admitted ‘‘were not prepared in the ordinary
course of business, but for litigation’’ and, therefore,
were not entitled to the presumption of reliability. Id.,
551. This court observed that, under the common law,
there is an ‘‘absolute right’’ to cross-examination in civil
cases. (Internal quotation marks omitted.) Id., 549. This
court declined, however, to consider ‘‘whether the pro-
visions of our federal and state constitutions against
depriving a person of his property without due process
of law afford some protection against legislative restric-
tion of cross-examination in civil cases’’ because § 52-
174 (b) ‘‘does not preclude taking the deposition of a
nonresident medical practitioner whose report or bill
may be offered into evidence at a trial’’ and, therefore,
‘‘does not significantly curtail the right of cross-exami-
nation . . . .’’ Id.
In Rhode v. Milla, supra, 287 Conn. 744, this court
construed Struckman to require cross-examination as
a prerequisite to admitting medical records pursuant
to § 52-174 (b) under the particular circumstances pre-
sented. The trial court in Rhode had admitted medical
bills from the plaintiff’s chiropractor, even though the
defendants were unable to cross-examine him because
he had ‘‘asserted his fifth amendment privilege in
response to all questions posed to him at his deposition
. . . .’’ Id., 734. This court cited Struckman for the
proposition that there is an ‘‘absolute common-law right
to cross-examination in a civil case.’’ (Internal quotation
marks omitted.) Id., 743. Because the defendants were
unable to exercise this right at trial or in a deposition,
this court held that the medical bills should not have
been admitted. Id., 744; see also Milliun v. New Milford
Hospital, 310 Conn. 711, 726, 80 A.3d 887 (2013) (physi-
cian’s expert opinion is admissible pursuant to § 52-174
(b), ‘‘as long as the defendant is afforded an opportunity
to cross-examine the author of the report’’); Milliun v.
New Milford Hospital, 129 Conn. App. 81, 106, 20 A.3d
36 (2011) (‘‘Rhode stands for the proposition that the
opportunity to cross-examine an expert is a necessary
procedural predicate to the admissibility of reports and
records pursuant to § 52-174 (b)’’), aff’d, 310 Conn. 711,
80 A.3d 887 (2013).
We conclude that this court’s decision in Rhode v.
Milla, supra, 287 Conn. 731, overstated the holding of
Struckman v. Burns, 205 Conn. 542. As we have
explained, the court in Struckman expressly concluded
that, as a general rule, ‘‘medical opinions . . . relevant
to diagnosis . . . may be admitted into evidence with-
out the testimony of the persons who made the entries
. . . and . . . this procedure does not violate a defen-
dant’s right of cross-examination.’’ (Citation omitted.)
Struckman v. Burns, supra, 550–51. Moreover, the
defendant in Struckman did not challenge the proposi-
tion that medical records are admissible pursuant to
§ 53-174 (b) if they are prepared in the ordinary course
of business, that is, for the purpose of diagnosing, caring
for and treating the plaintiff. It was only because the
defendant in Struckman contended that the medical
reports at issue were not created in the ordinary course
of business, but for use in the litigation, that this court
assumed, without deciding, that the ordinary rule
allowing the admission of medical records without an
opportunity for cross-examination would violate the
defendants’ due process rights. See id., 551–52.
This court’s assumption in Struckman that there is
a distinction between medical records prepared for use
in diagnosis, care and treatment, and those records
prepared for use in litigation finds support in this court’s
decision in D’Amato v. Johnston, supra, 140 Conn. 54,
which the court in Struckman cited. See Struckman v.
Burns, supra, 205 Conn. 549–50. In D’Amato, this court
held that there is ‘‘a distinction between entries [that]
contain information pertinent to and in aid of the con-
duct of the real business of the concern keeping the
record [which are admissible as business records, even
if the defendant had no opportunity to cross-examine
the author] and entries [that] are not pertinent to or in
aid of that business.’’ D’Amato v. Johnston, supra, 60–
61. This court observed that ‘‘[t]he real business of a
hospital is the care and treatment of sick and injured
persons. It is not to collect and preserve information
for use in litigation. Accordingly, even though it might
be the custom of a hospital to include in its records
information relating to questions of liability for injuries
[that] had been sustained by its patients, such entries
. . . would not be made admissible by the statute
[allowing admission of business records] unless they
also contained information having a bearing on diagno-
sis or treatment.’’ Id., 61.
We recognize that, in Struckman, this court made
reference to the ‘‘absolute’’ common-law right to cross-
examination. (Internal quotation marks omitted.)
Struckman v. Burns, supra, 205 Conn. 549; see also
Gordon v. Indusco Management Corp., 164 Conn. 262,
271, 320 A.2d 811 (1973) (‘‘[t]he right of cross-examina-
tion is not a privilege but is an absolute right and if
one is deprived of a complete cross-examination he has
a right to have the direct testimony stricken’’); Fahey
v. Clark, 125 Conn. 44, 47, 3 A.2d 313 (1938) (‘‘[a] fair and
full cross-examination of a witness upon the subjects
of his examination in chief is the absolute right, and
not the mere privilege, of the party against whom he
is called, and a denial of this right is a prejudicial and
fatal error’’ (internal quotation marks omitted)). Contra
State v. Jordan, 305 Conn. 1, 27, 44 A.3d 794 (2012)
(‘‘[t]he defendant’s right to cross-examine a witness
. . . is not absolute’’ (internal quotation marks omit-
ted)). It is clear, however, that Struckman itself recog-
nized that the right to cross-examination is not absolute
in the sense that a party always, and under all circum-
stances, has the right. Rather, evidence is admissible
without providing an opportunity for cross-examina-
tion, when, as with the business records exception to
the hearsay rule, the presumption of reliability is not
undermined by other circumstances. See Struckman v.
Burns, supra, 551–52 (medical opinions pertaining to
diagnosis may be admitted without providing opportu-
nity for cross-examination); see also Jenzack Partners,
LLC v. Stoneridge Associates, LLC, supra, 334 Conn.
390 (‘‘[t]he initial rationale for the [business records]
exception was that . . . business records [are] trust-
worthy because their creators had relied on the records
for business purposes’’ (internal quotation marks omit-
ted)); State v. Cooper, 182 Conn. 207, 213, 438 A.2d 418(1980) (right to cross-examination ‘‘is a substantial legal
right [that] may not be abrogated or abridged at the
discretion of the court to the prejudice of the cross-
examining party’’ (emphasis added; internal quotation
marks omitted)); cf. Conn. Code Evid. § 8-3 (enumerat-
ing exceptions to hearsay rule even though declarant
is available). To the extent that Rhode v. Milla, supra,287 Conn. 731, and Milliun v. New Milford Hospital,
supra, 310 Conn. 711, suggest that an opportunity for
cross-examination is an absolute prerequisite for the
admission of medical records prepared for use in the
diagnosis, care and treatment of a patient, we now
disavow that proposition. We conclude, therefore, that
the Appellate Court incorrectly determined that the
medical records of the plaintiff in the present case were
inadmissible under § 52-174 (b) because the defendant
did not have an opportunity to cross-examine Vitale.
The defendant contends that the final report was not
admissible under § 52-174 (b) because it contained her
expert opinions on causation and permanency, and was
not prepared in the ordinary course of business, namely,
for medical diagnosis and treatment, but instead for
use in this litigation. See D’Amato v. Johnston, supra,140 Conn. 61 (medical records ‘‘relating to questions
of liability for injuries [that] had been sustained by [a
patient] . . . would not be made admissible by the stat-
ute [allowing admission of business records] unless
they also contained information having a bearing on
diagnosis or treatment’’); cf. Jefferson Garden Associ-
ates v. Greene, 202 Conn. 128, 140–41, 520 A.2d 173(1987) (‘‘documents prepared for litigation are
excluded, not on a per se basis, but rather upon an
inquiry into whether such documents bear circumstan-
tial indicia of lack of trustworthiness’’).12 The defendant,
however, made no claim and presented no evidence to
the trial court that the final report was prepared in
contemplation of litigation and not for use in the care
and treatment of the plaintiff.13 Although the defendant
contended at oral argument before the trial court on
its motion to preclude the final report that the report
contained Vitale’s opinion, as this court recognized in
D’Amato, virtually all medical reports contain the opin-
ion of the author, yet they are generally admissible. See
D’Amato v. Johnston, supra, 58 (‘‘[t]he making of a
diagnosis certainly involves the formulation of an
expert opinion, and yet we have said that the entry in a
hospital record setting forth the diagnosis of a patient’s
illness is an entry [that] is admissible’’ under statute
allowing admission of business records). The fact that
the final report contained Vitale’s opinion on causation
and permanency, which are issues that typically require
expert testimony, fails to establish, in and of itself, that
the report was not prepared for use in the care and
treatment of the plaintiff. In any event, the defendant
did not claim in the proceedings before the trial court
that medical records containing opinions on causation
and permanency are inadmissible per se under § 52-174
(b) if there is no opportunity for cross-examination.
Even putting aside the preservation issues that arise
from the defendant’s failure to make a distinct argument
at trial that the final report was inadmissible under § 52-
174 (b) on the ground that it was prepared exclusively
for use in this litigation,14 we conclude that the record
simply does not support that particular claim.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion the other justices concurred.
* June 29, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 52-174 (b) provides: ‘‘In all actions for the recovery
of damages for personal injuries or death, pending on October 1, 1977, or
brought thereafter, and in all court proceedings in family relations matters,
as defined in section 46b-1, or in the Family Support Magistrate Division,
pending on October 1, 1998, or brought thereafter, and in all other civil
actions pending on October 1, 2001, or brought thereafter, any party offering
in evidence a signed report and bill for treatment of any treating physician
or physician assistant, dentist, chiropractor, naturopath, physical therapist,
podiatrist, psychologist, social worker, mental health professional, an emer-
gency medical technician, optometrist or advanced practice registered nurse,
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, physician assistant, dentist, chiropractor, naturopath, physical
therapist, podiatrist, psychologist, social worker, mental health professional,
emergency medical technician, optometrist or advanced practice registered
nurse and that the report and bill were made in the ordinary course of
business. The use of any such report or bill in lieu of the testimony of such
treating physician, physician assistant, dentist, chiropractor, naturopath,
physical therapist, podiatrist, psychologist, social worker, mental health
professional, emergency medical technician, optometrist or advanced prac-
tice registered nurse shall not give rise to any adverse inference concerning
the testimony or lack of testimony of such treating physician, physician
assistant, dentist, chiropractor, naturopath, physical therapist, podiatrist,
psychologist, social worker, mental health professional, emergency medical
technician, optometrist or advanced practice registered nurse. In any action
to which this subsection applies, the total amount of any bill generated
by such physician, physician assistant, dentist, chiropractor, naturopath,
physical therapist, podiatrist, psychologist, social worker, mental health
professional, emergency medical technician, optometrist or advanced prac-
tice registered nurse shall be admissible in evidence on the issue of the
cost of reasonable and necessary medical care. The calculation of the total
amount of the bill shall not be reduced because such physician, physician
assistant, dentist, chiropractor, naturopath, physical therapist, podiatrist,
psychologist, social worker, mental health professional, emergency medical
technician, optometrist or advanced practice registered nurse accepts less
than the total amount of the bill or because an insurer pays less than the
total amount of the bill.’’
2
We granted the plaintiff’s petition for certification to appeal, limited to
the following issue: ‘‘Did the Appellate Court correctly conclude that the
plaintiff’s Veterans Administration hospital records improperly were admit-
ted into evidence pursuant to . . . § 52-174 (b)?’’ DeMaria v. Bridgeport,
333 Conn. 916, 217 A.3d 1 (2019).
3
‘‘General Statutes § 13a-149 provides in relevant part: ‘Any person injured
in person or property by means of a defective road or bridge may recover
damages from the party bound to keep it in repair. . . .’ ’’ DeMaria v.
Bridgeport, supra, 190 Conn. App. 452 n.2.
4
Title 38 of the 2017 edition of the Code of Federal Regulations, § 14.808
(a), provides in relevant part: ‘‘[Department of Veterans Affairs] personnel
shall not provide, with or without compensation, opinion or expert testimony
in any legal proceedings concerning official [Department of Veterans Affairs]
information, subjects or activities, except on behalf of the United States or
a party represented by the United States Department of Justice. Upon a
showing by the requester . . . that, in light of the factors listed in § 14.804,
there are exceptional circumstances and that the anticipated testimony will
not be adverse to the interests of the Department of Veterans Affairs or to
the United States, the responsible [Department of Veterans Affairs] official
designated in § 14-807 (b) may, in writing, grant special authorization for
[Department of Veterans Affairs] personnel to appear and testify. . . .’’
5
After the appeal was filed, we granted permission to the Connecticut
Veterans Legal Center to file an amicus curiae brief in support of the plain-
tiff’s position.
6
The plaintiff also contends that the defendant cannot claim that its due
process rights were violated by the admission of his medical records because
the defendant failed to exhaust all available methods to secure Vitale’s
testimony. The plaintiff did not raise this claim in either the trial court or
the Appellate Court; indeed, he conceded in his Appellate Court brief that
Vitale ‘‘was beyond the effective subpoena power of the trial court.’’ DeMaria
v. Bridgeport, Conn. Appellate Court Briefs & Appendices, January Term,
2019, Plaintiff’s Brief p. 5. Accordingly, we decline to review the claim. See,
e.g., State v. Fauci, 282 Conn. 23, 26 n.1, 917 A.2d 978 (2007).
7
The defendant did not clearly identify in its brief to this court the specific
record that it claims was inadmissible. It became clear at oral argument
before this court, however, that the defendant objected to the admission of
the final report authored by Vitale.
8
General Statutes § 52-180 provides in relevant part: ‘‘(a) Any writing or
record, whether in the form of an entry in a book or otherwise, made as a
memorandum or record of any act, transaction, occurrence or event, shall
be admissible as evidence of the act, transaction, occurrence or event, if
the trial judge finds that it was made in the regular course of any business,
and that it was the regular course of the business to make the writing or
record at the time of the act, transaction, occurrence or event or within a
reasonable time thereafter.
‘‘(b) The writing or record shall not be rendered inadmissible by (1) a
party’s failure to produce as witnesses the person or persons who made the
writing or record, or who have personal knowledge of the act, transaction,
occurrence or event recorded or (2) the party’s failure to show that such
persons are unavailable as witnesses. Either of such facts and all other
circumstances of the making of the writing or record, including lack of
personal knowledge by the entrant or maker, may be shown to affect the
weight of the evidence, but not to affect its admissibility. . . .’’
9
Section 8-4 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) Any writing or record, whether in the form of an entry in a book
or otherwise, made as a memorandum or record of any act, transaction,
occurrence or event, shall be admissible as evidence of the act, transaction,
occurrence or event, if the trial judge finds that it was made in the regular
course of any business, and that it was the regular course of the business
to make the writing or record at the time of the act, transaction, occurrence
or event or within a reasonable time thereafter.
‘‘(b) The writing or record shall not be rendered inadmissible by (1) a
party’s failure to produce as witnesses the person or persons who made the
writing or record, or who have personal knowledge of the act, transaction,
occurrence or event recorded or (2) the party’s failure to show that such
persons are unavailable as witnesses. Either of such facts and all other
circumstances of the making of the writing or record, including lack of
personal knowledge by the entrant or maker, may be shown to affect the
weight of the evidence, but not to affect its admissibility. . . .’’
10
We recognize that the criteria for admissibility pursuant to §§ 52-174
(b) and 52-180 differ in some respects. For example, it is presumed under
§ 52-174 (b) that medical records are prepared in the ordinary course of
business, whereas, under § 52-180 (a), the trial judge must make a finding
to that effect. To the extent the statutes differ, the more specific statute,
§ 52-174 (b), applies.
11
The court in D’Amato was construing General Statutes (1949 Rev.)
§ 7903, the predecessor provision to § 52-180. See D’Amato v. Johnston, 140
Conn. 54, 56–57 n.1, 62, 97 A.2d 893 (1953).
12
In Struckman v. Burns, supra, 205 Conn. 551, this court assumed, with-
out deciding, that § 52-174 (b) would be unconstitutional as applied to
medical records that are prepared for use in litigation. This constitutional
assumption, insofar as it is predicated on § 52-174 (b), is inconsistent with
this court’s holding in D’Amato that medical records prepared exclusively
for use in litigation simply do not constitute ‘‘business entries’’ subject to
that statute allowing the admission of business records because health care
providers are not in the business of preparing such records. (Emphasis
added.) D’Amato v. Johnston, supra, 140 Conn. 57; see id., 61 (‘‘The real
business of a hospital is the care and treatment of sick and injured persons.
It is not to collect and preserve information for use in litigation.’’)
13
Instead, the defendant contended in its motion in limine that the final
report was inadmissible because it had no way of knowing whether Vitale,
a physicians assistant, was competent to render an opinion on the perma-
nency of the plaintiff’s hand injury, which is a claim that it does not renew
on appeal. It also argued generally that all of Vitale’s ‘‘treatment records,
treatment reports, findings, conclusions, and medical opinions . . . that
reference any medical treatment, diagnosis, prognosis, or permanent injury’’
suffered by the plaintiff were inadmissible because the defendant was unable
to cross-examine Vitale, whom the plaintiff had disclosed as an expert
witness. The defendant did not specifically refer to the final report or contend
that any of the records had been prepared for use in this litigation.
14
See Jefferson Garden Associates v. Greene, supra, 202 Conn. 140 (declin-
ing to review defendant’s claim that certain documents were inadmissible
under § 52-180 because they were prepared for use in litigation when defen-
dant had objected to admission of documents only on ground that witness
lacked competency to offer documents into evidence).