Aspiazu v. Orgera

• Decision Date: 29 December 1987
• Docket Number: No. 13125,13125
• Citation: 205 Conn. 623,535 A.2d 338
• Court: Connecticut Supreme Court
• Parties: Carlos ASPIAZU v. Mario ORGERA.

Page 338

535 A.2d 338

205 Conn. 623

Carlos ASPIAZU v. Mario ORGERA.

No. 13125.

Supreme Court of Connecticut.

Argued Sept. 29, 1987.

Decided Dec. 29, 1987.

Mark F. Katz, Stamford, for appellant (defendant).

Robert R. Petrucelli, Bridgeport, for appellee (plaintiff).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and GLASS, JJ. ARTHUR H. HEALEY, Associate Justice.

The plaintiff, Carlos Aspiazu, brought this action for damages against the defendant, Mario Orgera, alleging an intentional assault and/or a negligent contact. The jury found for the plaintiff on the intentional assault count and awarded $28,000 in damages. The defendant has appealed to this court, alleging that the trial court improperly admitted a medical report and that the court erred in its instruction to the jury regarding unemployment compensation benefits awarded to the plaintiff. We find no error.

The jury could reasonably have found the following facts: The plaintiff had worked for one year as an assistant engineer and superintendent under the supervision of the defendant. The two parties had been at odds in the year previous to the alleged assault. On March 18, 1980, the plaintiff reported for work and was using a heavy broom to sweep water off the roof of a building under construction in Stamford. The defendant approached the plaintiff, told him in a loud voice that he was fired, and then struck him in the mouth with his fist. The defendant continued to throw punches, hit the plaintiff with the broom, and then tried to push him off the roof. The plaintiff managed to run away and call the police.

The police took the plaintiff to St. Joseph Hospital where he was treated and released. The hospital record indicates that the plaintiff suffered a lacerated lower lip, a lump on his forehead and two loosened front teeth. The plaintiff later had to have those two teeth removed and had a bridge inserted by Dr. Herbert Kweskin, a dentist. He also saw Dr. Simon Goldfarb, a psychiatrist, during the months immediately following the assault.

The defendant raises two claims on appeal: (1) the trial court erred in admitting the doctor's report of Goldfarb because the report contained inadmissible hearsay and it failed to establish causation; and (2) the trial court erred by instructing the jury that the evidence of the receipt of unemployment compensation by the plaintiff was to be used by the jury only for impeachment purposes.

I

The record reveals that Goldfarb treated the plaintiff from March 24, 1980, to August 25, 1980. On March 14, 1981, Goldfarb prepared a written report that described the history and treatment of the plaintiff. At the time of trial, Goldfarb had retired and was living in New Mexico and neither the plaintiff nor the defendant attempted to procure his attendance at the trial or to take his deposition. Instead, the plaintiff sought to introduce the doctor's report under General Statutes § 52-174(b), ¹ which permits the admission into evidence of any "treating" physician's report as a business entry. The defendant objected to the report in its entirety and also made objections to various portions of the report that resulted in numerous redactions by the trial court.

A

The defendant first objects to the admission into evidence of certain hearsay testimony contained in Goldfarb's report. The defendant asserts that Goldfarb had not met the plaintiff prior to the assault and therefore all of his report "must necessarily have been based upon information provided by the plaintiff or others."

Before specifically addressing the defendant's first argument, it is instructive to examine General Statutes § 52-174(b). That statute permits a signed doctor's report to be admitted as a business entry. The business records statute, General Statutes § 52-180, ² allows the admission of any writing as evidence of the act or event it describes provided the record was made in the regular course of business and that it was the regular course of business to make such a writing within a reasonable time after the occurrence of the event in question. Section 52-174(b) creates a presumption that the doctor's signature is genuine and that the report was made in the ordinary course of business. See Struckman v. Burns, 205 Conn. 542, 534 A.2d 888 (1987). Thus, once the statutory requirement that the report be signed by a treating physician is met, the evidence in that report is admissible and has the same effect as a business entry. This does not mean, however, that the entire report is automatically admitted. State v. Daniels. 180 Conn. 101, 105, 429 A.2d 813 (1980). In the area of hospital records, this court has held that since the business of a hospital is treating patients, information that is not relevant to the medical treatment of the patient is inadmissible. Kelly v. Sheehan, 158 Conn. 281, 285, 259 A.2d 605 (1969) (identity of driver who struck patient is not admissible); Maggi v. Mendillo, 147 Conn. 663, 667, 165 A.2d 603 (1960); D'Amato v. Johnston, 140 Conn. 54, 61, 97 A.2d 893 (1953). Information that is relevant to the treatment of the patient, however, is admissible. See, e.g., D'Amato v. Johnston, supra, at 61-62, 97 A.2d 893 (drunkenness is medically germane to treatment and therefore admissible). "Section 52-174(b) in no way eliminates a plaintiff's burden of establishing the relevancy of the expert opinions expressed [in the report]." Struckman v. Burns, supra, 205 Conn. at 554, 534 A.2d 888. We hold that doctors' reports should be treated similarly to hospital records regarding relevancy problems. Once the report is ruled admissible under the statute, any information that is not relevant to medical treatment is subject to redaction by the trial court.

Turning to the defendant's claim of hearsay, we first recognize that once a report qualifies as a business record, its proponent is not required to show the source of information for each item contained in the record. The burden is on the objecting party to specify objections to the inadmissible parts of the report. Mucci v. LeMonte, 157 Conn. 566, 570, 254 A.2d 879 (1969); C. Tait & J. LaPlante, Connecticut Evidence (1976) § 11.14(f). The defendant made an initial objection to the admission of the report as a whole. In response, the trial court indicated that it was going to admit the report on the basis of the statute but that it would consider any of the defendant's objections to specific portions of the report. The defendant made numerous suggestions to the court with the result that the court redacted a number of irrelevant sentences.

"It is the general rule that an expert's opinion is inadmissible if it is based on hearsay evidence. See cases such as Vigliotti v. Campano, 104 Conn. 464, 465, 133 A. 579 [1926]. One exception to this rule, and the only one bearing on this appeal, is the exception which allows a physician to testify to his opinion even though it is based, in whole or in part, on statements made to him by a patient for the purpose of obtaining from him professional medical treatment or advice incidental thereto. And, of course, he may also testify to such statements." Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964); see State v. Esposito, 192 Conn. 166, 175, 471 A.2d 949 (1984). In Brown, we also said: "Most exceptions to the hearsay rule are permitted because it is believed that safeguards are present which at least approach those given by the opportunity for cross-examination existing where hearsay testimony is not involved. See cases such as Ferguson v. Smazer, 151 Conn. 226, 231, 196 A.2d 432 [1963]. In the case of the exception we are considering, the safeguard is the patient's desire to recover his health, which it is considered will restrain him from giving inaccurate statements to a physician employed to advise or treat him." Brown v. Blauvelt, supra, 152 Conn. at 275, 205 A.2d 773. Goldfarb's report satisfies the requirements of § 52-174(b): it is the signed report of a treating physician in an action for personal injuries. The information in the report is relevant on the issue of the plaintiff's damages and the information falls under the hearsay exception for statements of bodily condition made to a treating physician. State v. Esposito, supra; Brown v. Blauvelt, supra, at 274, 205 A.2d 773; C. Tait & J. LaPlante, supra, § 11.12.

The defendant renewed his objection to the report in its entirety but that objection was overruled by the trial court. On appeal, the defendant does not identify in his brief any specific hearsay statements that he claims were improperly admitted. Moreover, at oral argument he neither identified them nor asserted any reasons why they were inadmissible. We note that the trial court redacted a number of statements dealing with the plaintiff's past history. The remainder of the report concerns general background information about the plaintiff, a description of the course of treatment, and a diagnosis. All of this information was pertinent to Goldfarb's treatment of the plaintiff. The trial court's actions were correct and the defendant's claim that hearsay statements were improperly admitted into evidence has no merit.

B

The defendant next asserts that Goldfarb's report failed to establish the necessary causal relationship between the alleged assault and the subsequent treatment and damage sustained by the plaintiff. This argument also has no merit.

"To be entitled to damages a plaintiff must establish a causal relationship between the injury and the physical condition which he claims resulted from it. Bates v. Carroll, 99 Conn. 677, 679, 122 A. 562 [1923]." Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953). This causal connection must rest upon more than surmise or conjecture. Id. "A trier is not concerned with possibilities but with reasonable probabilities. Richardson v. Pratt & Whitney Mfg. Co., 129 Conn. 669, 672, 30 A.2d 919 [1943]." Boland v. Vanderbilt, supra. The...