Struckman v. Burns

• Citation: 205 Conn. 542,534 A.2d 888
• Decision Date: 15 December 1987
• Docket Number: No. 13136,13136
• Court: Supreme Court of Connecticut
• Parties: Heather STRUCKMAN v. J. William BURNS, Commissioner of Transportation.

Page 888

534 A.2d 888

205 Conn. 542

Heather STRUCKMAN v. J. William BURNS, Commissioner of Transportation.

No. 13136.

Supreme Court of Connecticut.

Argued Oct. 8, 1987.

Decided Dec. 15, 1987.

Eugene A. Cooney, with whom, on the brief, was Joseph A. LaBella, Hartford, for appellant (defendant).

Ross T. Lessack, with whom, on the brief, was Edward T. Dodd, Jr., Waterbury, for appellee (plaintiff).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.

SHEA, Associate Justice.

The principal issue in this appeal is whether medical reports and bills may be admitted into evidence under General Statutes § 52-174(b) without testimony from the medical practitioner who prepared them where the medical practitioner resides outside this state, and, therefore, cannot be subpoenaed for a trial in Connecticut. ¹ We conclude that such reports and bills are admissible under the statute and find no error in the trial court's ruling to that effect.

A jury verdict was returned in favor of the plaintiff in this action under General Statutes § 13a-144, the defective highway statute, against the defendant, J. William Burns, commissioner of transportation of the state of Connecticut. The jury could reasonably have found that the plaintiff was driving her car on Route 64 in Middlebury on the night of December 23, 1981. The plaintiff, the sole occupant of the vehicle, lost control and ran off the road after skidding on a patch of ice. The plaintiff in her complaint asserted that the defendant failed in various respects to maintain Route 64 in a reasonably safe condition. On appeal, the defendant does not challenge the jury's finding that he did not properly maintain this section of Route 64 on the night of the accident.

The defendant does dispute in this appeal the amount of the damages awarded to the plaintiff. The jury returned a verdict in the amount of $35,000. Aside from the testimony of the defendant, the only evidence concerning the extent of her damages consisted of medical reports and bills from several out-of-state medical practitioners. During the trial the defendant objected to, and now challenges the admission of medical reports and bills from three chiropractors and two dentists, who resided in Florida, Georgia and New Jersey.

On January 17, 1984, the plaintiff filed an offer of judgment in the amount of $14,250. Practice Book § 345. Following the verdict, the court awarded prejudgment interest in the amount of $13,716.47 under the authority of General Statutes § 52-192a. The defendant on appeal claims that the trial court erred in awarding prejudgment interest to the plaintiff because the state is not included within the general interest statute, and because the legislature has not otherwise agreed to waive the state's sovereign immunity in this regard. We conclude that the trial court erred in assessing prejudgment interest against the state.

I

A

The defendant claims that the trial court erred in interpreting the scope of General Statutes § 52-174(b) which provides: "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, dentist, chiropractor, osteopath, natureopath or podiatrist 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 the treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist and that the report and bill were made in the ordinary course of business." The defendant maintains that the statute applies only to the reports and bills of medical practitioners residing in this state, who are within the subpoena power of our courts, but not to those of nonresident medical practitioners who cannot be compelled to testify at a trial in this state.

In support of his argument, the defendant cites subsection (c) of the statute, which provides as follows: "This section shall not be construed as prohibiting either party or the court from calling the treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist as a witness." The defendant maintains that subsection (c) indicates that subsection (b) was meant to apply only to resident medical practitioners who are within our court's subpoena authority. The defendant contends that subsection (b) must be read in light of subsection (c) because this court is obligated to read a statute as a whole. State v. Parmalee, 197 Conn. 158, 161-62, 496 A.2d 186 (1985).

The language of the statute does not restrict it to resident medical practitioners. Rather, it applies "[i]n all actions" and to "any treating physician." General Statutes § 52-174(b). This court does not have to look further than the statute for the legislative intent. "If the words of a statute are clear, the duty of a reviewing court is to apply the legislature's directive since where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended, but what intention it expressed by the words that it used. P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159, 454 A.2d 1258 (1983); Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980)." Duguay v. Hopkins, 191 Conn. 222, 228, 464 A.2d 45 (1983). If the General Assembly intended to require the actual availability of the treating physician in the jurisdiction as a prerequisite to the admissibility of his medical report and bill for treatment, it could have explicitly so stated. Courts may not " 'read into clearly expressed legislation provisions which do not find expression in its words.' " Brunswick Corporation v. Liquor Control Commission, 184 Conn. 75, 81, 440 A.2d 792 (1981), quoting International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974).

We agree with the defendant that a statute should be read as a whole. Subsection (a) of § 52-174 allows medical reports and bills to be admitted even if the medical practitioner or engineer who prepared them is beyond the effective subpoena power of our courts and is unable to testify at trial where that person is deceased, or is disabled, either mentally or physically. ² In light of subsection (a) it cannot be said that subsection (c) necessarily requires us to construe subsection (b) as excluding nonresident medical practitioners simply because they are not subject to a subpoena in this state.

The defendant also argues that the legislature clearly intended when it passed No. 77-226 of the 1977 Public Acts, which created General Statutes § 52-174(b) in its present form, to give defendants or the court a right to subpoena the treating medical practitioner under subsection (c). Representative Ernest Abate stated: "In no event, however, if the report is in fact admitted without testimony of the physician, is the attorney precluded in fact from calling the physician in a different stage in the trial." 20 H.R.Proc., Pt. 8, 1977 Sess., p. 2994.

Immediately after Representative Abate made this statement, however, Representative Vincent Villano clarified how this bill would apply to medical practitioners who no longer resided in the state. He said: "There's a lot of miscarriage of justice [that] occurs in civil action cases where the doctors who have treated a patient, move out of the state or move out of the town. Some are staff doctors in hospitals. They spend two or three years and they're gone, and their personal reports, while the hospital record is there, their personal reports are not, not ... to be introduced in evidence. And I say this will remedy a great deal of injustice that occurs when the doctor moves and his testimony cannot be introduced in the trial." Id. The clear implication of Representative Villano's remarks was that the reports and bills of a medical practitioner would be admissible even if the medical practitioner had moved outside of the state and, therefore, was beyond the subpoena power of our courts. No one in the legislature raised any objection to Representative Villano's remarks, and the house voted immediately thereafter in favor of the bill. The legislative history of subsection (b) supports the conclusion that it was meant to apply to nonresident medical practitioners.

There is additional evidence that § 52-174(b) is meant to include nonresident treating medical practitioners. The General Assembly by enacting Public Acts 1978, No. 78-140, removed from an earlier version of § 52-174(b) a provision which required the clerk of the court upon motion of a party or the court to subpoena the medical expert whose written report was being offered under the terms of the statute. Further, § 52-174(b) characterizes such medical reports as "business entries" and the legislature in General Statutes § 52-180(b) has provided 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.

In view of its legislative history and wording, we hold that § 52-174(b) permits the admission 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.

B

The defendant contends that if General Statutes § 52-174(b) allows plaintiffs to submit into evidence the medical reports and bills of nonresident medical practitioners then the statute violates the defendant's right of cross-examination under the United States and Connecticut constitutions. We find no violation of either our federal or state constitution.

As the defendant maintains, the right of cross-examination does have a...