Williams v. Lawrence + Memorial Hospital, Inc.

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CHRISTOPHER WILLIAMS, ADMINISTRATOR
(ESTATE OF JOHN WILLIAMS) v.
LAWRENCE + MEMORIAL
HOSPITAL, INC., ET AL.
(AC 44065)
Cradle, Clark and Flynn, Js.

Syllabus

The plaintiff, as administrator of the estate of the decedent, sought to recover
damages for medical malpractice from the defendant B, an emergency
medicine physician who treated the decedent for injuries sustained in
a motorcycle accident that ultimately led to his death. At the conclusion
of the plaintiff’s case-in-chief, the plaintiff moved to admit into evidence
certain excerpts from a medical text known as the Advanced Trauma
Life Support guidelines, which the plaintiff contended constituted excep-
tions to the rule against hearsay as statements in learned treatises,
pursuant to the applicable provision (§ 8-3 (8)) of the Connecticut Code
of Evidence. The basis for the plaintiff’s motion was that two of his
medical experts had recognized those guidelines as an authoritative
treatise in the field of trauma medicine and had relied on specific por-
tions of the guidelines in providing their expert testimony. The court
denied the plaintiff’s motion on the ground that the relevant excerpts
could confuse the jurors as to the relevant standard of care. Following
the jury’s verdict for B, the plaintiff appealed to this court, claiming
that § 8-3 (8) creates a presumption of admissibility, that the guidelines
met the requirements for admission, and, accordingly, that the trial court
lacked a legal basis upon which to exclude them. Held that the trial court
did not abuse its discretion in precluding admission of the guidelines
excerpts; although Connecticut permits the admission of learned trea-
tises into evidence, the court had the discretion to exclude evidence
that carried the danger of misunderstanding or misapplication by the
jury, and the court correctly determined that, had the excerpts been
admitted, the jury could mistakenly have assessed B’s conduct only in
light of the guidelines rather than determining whether B deviated from
the standard of care in treating the decedent, as, throughout the trial,
the plaintiff repeatedly and erroneously contended that the guidelines
set forth the relevant standard of care.
Argued November 16, 2021—officially released April 5, 2022

Procedural History

Action to recover damages for medical malpractice,
and for other relief, brought to the Superior Court in
the judicial district of New London, where the action
was withdrawn as against the named defendant et al.;
thereafter, the matter was tried to the jury before
Swienton, J.; subsequently, the court denied the plain-
tiff’s motion to admit certain evidence; verdict and judg-
ment for the defendant Peter Bertolozzi, from which
the plaintiff appealed to this court. Affirmed.
Dana M. Hrelic, with whom were Stacie L.
Provencher, and, on the brief, Karen L. Dowd, for the
appellant (plaintiff).
Logan A. Carducci, with whom was Frederick J.
Trotta, Sr., for the appellee (defendant Peter Berto-
lozzi).
Opinion

CRADLE, J. In this medical malpractice action, the
plaintiff, Christopher Williams, administrator of the
estate of John Williams (decedent), appeals from the
judgment of the trial court, rendered after a jury trial, in
favor of the defendant, Peter Bertolozzi, an emergency
medicine physician.1 On appeal, the plaintiff claims that
the trial court abused its discretion by declining to
admit into evidence certain excerpts from the Advanced
Trauma Life Support (ATLS) guidelines, which the
plaintiff argues were admissible under § 8-3 (8) of the
Connecticut Code of Evidence. We disagree and,
accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. In the early afternoon hours of August 9, 2015,
the decedent was operating his motorcycle when he
collided with an oncoming vehicle. He sustained critical
injuries to his lower body2 and was transported by
ambulance to Lawrence + Memorial Hospital (hospital)
in New London, where he was placed under the care
of, and treated by, the defendant.
Shortly after arriving at the hospital, the decedent
lost consciousness. The defendant intubated the dece-
dent and ordered a blood transfusion.3 Concerned that
the decedent was bleeding internally and had suffered
head trauma, the defendant sent the decedent for a CT
scan in order to locate the source of the hemorrhaging
and to diagnose other potential injuries. The defendant
also consulted with David Reisfeld, the onsite surgeon,
to determine whether the decedent could be effectively
stabilized at the hospital or whether he required transfer
to a designated trauma facility. Specifically, Reisfeld
and the defendant determined that, if the decedent was
bleeding abdominally, Reisfeld could operate onsite at
the hospital. If, however, the decedent presented with
intracranial bleeding or a lower extremity or vascular
issue, Reisfeld and the defendant concluded that the
decedent would need to be transferred to a designated
trauma facility.
After the decedent underwent the CT scan, the defen-
dant spoke with the hospital’s orthopedic surgeon, who
concluded that the decedent likely was suffering from
a vascular issue. The defendant also discussed the
results of the CT scan with the hospital’s radiologist.
After conferring with both the orthopedic surgeon and
the radiologist, the defendant concluded that the dece-
dent had suffered injuries beyond the hospital’s capac-
ity for treatment and required transfer to a designated
trauma facility for further diagnoses and treatment. The
defendant then arranged for the decedent to be trans-
ported via helicopter to Yale New Haven Hospital.
Shortly after air medics arrived at the hospital to trans-
port the decedent, he suffered cardiac arrest and was
pronounced dead later that day.
The plaintiff commenced the present action on July
22, 2016, by way of a three count complaint against the
defendant, Reisfeld, and the hospital. On November 25,
2019, the plaintiff filed a third revised complaint4 against
the defendant alleging, inter alia, that the defendant
deviated from the applicable standard of care5 in two
ways. First, the plaintiff alleged that the defendant failed
to recognize that the decedent’s condition required an
immediate transfer to a designated trauma facility. Sec-
ond, the plaintiff alleged that the defendant failed to
follow appropriate protocols for the care and treatment
of a trauma patient.6 The defendant denied both allega-
tions.
A ten day jury trial commenced on November 12,
2019. At trial, the plaintiff argued that the defendant
deviated from the standard of care by failing to follow
the ATLS guidelines, a medical text promulgated by the
American College of Surgeons that sets forth proce-
dures, protocols, and practices for emergency medical
professionals to follow when treating trauma patients.
In support of his claim that the defendant deviated
from the standard of care by failing to follow the ATLS
guidelines, the plaintiff presented the testimony of two
expert witnesses, Kevin Brown, a board-certified emer-
gency medicine physician, and Ronald Simon, a board-
certified trauma surgeon.7 Brown testified that the ATLS
guidelines are an authoritative resource that sets forth
the best practices for the initial stabilization of trauma
patients. As an ATLS instructor, Brown explained that
the ATLS guidelines are taught to emergency medical
professionals in a biannual, two day course, which
includes both practical instruction and clinical scenar-
ios, and that the successful completion results in a three
year ATLS certification. Brown also testified that the
ATLS guidelines are an evolving text that changes every
three years in line with contemporary medical research.
In the context of the present case, Brown testified
that the ATLS guidelines establish standardized proce-
dures for the initial care of trauma patients, patients
diagnosed with severe pelvic injuries, and patients who
require transfer to a separate trauma facility. Relying
on the guidelines, Brown opined that the defendant
deviated from the standard of care by (1) failing to
administer appropriate resuscitative blood to the dece-
dent, (2) failing to immediately transfer the decedent
to a designated trauma facility, (3) ordering a CT scan
instead of less time intensive procedures, and (4) failing
to use a ‘‘pelvic binder’’ device to stabilize the dece-
dent’s pelvic fracture and reduce bleeding. On redirect
examination, Brown clarified that, although the ATLS
guidelines set forth specific procedural steps, physi-
cians retain discretion in treating trauma patients. Spe-
cifically, he testified that the ATLS guidelines ‘‘don’t
cover every single . . . possibility that there is . . .
when there are straightforward kind of protocols to
implement or approaches to implement you follow
along the protocol and you can still use judgment . . . .
So it’s not one or the other. There are guidelines
throughout medicine and [applying those guidelines]
has to be reasonable to that case . . . [s]o we have so
many guidelines for so many different conditions.’’
Simon testified that the ATLS guidelines were
intended to provide emergency medical professionals
with a uniform, international standard to follow during
the initial care of trauma patients. He testified further
that the guidelines set forth a ‘‘well-defined algorithm’’
that assists emergency medicine professionals to iden-
tify and treat injuries that present the most immediate
threat to a patient’s life. Simon opined that, had the
ATLS procedural steps been followed in the present
case, the decision to transfer the decedent to a desig-
nated trauma facility would have been expedited. Spe-
cifically, Simon testified that the defendant should have
performed a Focused Assessment with Sonography for
Trauma (FAST) examination to determine whether the
decedent was bleeding internally.8 By contrast, Simon
testified that the CT scan was time intensive and unsafe
because the procedure required that the patient be
alone in a room until the scan was completed.
On cross-examination, Simon conceded that FAST
examinations generally are less accurate than CT scans,
especially when performed on larger patients and
patients diagnosed with pelvic fractures, such as the
decedent. He also testified that only trauma surgeons
are required to ‘‘remain current in ATLS’’ while emer-
gency medicine physicians, such as the defendant, are
not required to recertify. Nevertheless, Simon testified
that the ATLS guidelines informed the standard of care
with regard to the defendant’s treatment of the dece-
dent.
The plaintiff also called the defendant to testify as
to the ATLS guidelines. The defendant testified that he
had become ATLS certified in 2010 and, despite electing
not to recertify, had kept abreast of the evolving guide-
lines. The defendant testified that the ATLS guidelines
are ‘‘a good primer and . . . very good for people who
don’t work in emergency department[s], or are not sur-
geons . . . .’’ The defendant clarified that he ‘‘consid-
er[s] many things authoritative . . . [but] would not
say ATLS is the most authoritative trauma . . .
resource . . . .’’
At the conclusion of the plaintiff’s case-in-chief, the
plaintiff’s counsel moved, pursuant to § 8-3 (8) of the
Connecticut Code of Evidence, to admit into evidence
certain excerpts from the ATLS guidelines.9 The basis
for the plaintiff’s motion was that Brown and Simon
recognized the ATLS guidelines as an authoritative trea-
tise in the field of trauma medicine and relied on speci-
fied portions of the guidelines in providing their expert
testimony. The defendant objected, arguing that admit-
ting ‘‘medical article[s] into evidence . . . [would be]
inappropriate.’’ The court, Swienton, J., denied the
plaintiff’s motion on the ground that the admission of
the relevant excerpts could confuse the jurors as to the
relevant standard of care. Specifically, the court stated,
‘‘I think it’s the court’s discretion and I think that . . .
[Brown and Simon have] testified from these portions
[of the ATLS guidelines] already, and I think having the
texts themselves in the jury . . . deliberation room
. . . could just lead to some confusion by the jurors,
and I’m not going to admit them as full into evidence
as full exhibits.’’
The defendant also presented testimony from two
standard of care experts, William Dalsey, a board-certi-
fied emergency medicine physician, and George Vel-
mahos, a board-certified surgeon. Both Dalsey and Vel-
mahos addressed the ATLS guidelines during their
testimony.
Dalsey testified that he was an ATLS instructor from
1981 through the early 2000s. He also testified that the
purpose of the ATLS course and guidelines is ‘‘to begin
the initial education and training of health-care provid-
ers in the treatment of trauma’’ and that ATLS is ‘‘pri-
marily focused on people that don’t take care of patients
that are trauma victims on a regular basis.’’ Specifically,
Dalsey clarified that ‘‘[ATLS] is useful for physicians
who don’t work in emergency departments, who don’t
take care of trauma patients . . . .’’
Dalsey further testified that emergency physicians
are not required to maintain ATLS certification because
‘‘the training [that] an emergency physician goes
through is beyond what the ATLS [guidelines teach]
and is beyond the scope of the beginning education
that ATLS tries to provide.’’ Accordingly, Dalsey opined
that ‘‘ATLS [does not set] a standard of care [and] was
never intended to set a standard of care [because] . . .
emergency physicians are trained past the point of the
basic algorithms of ATLS . . . .’’
On cross-examination, the plaintiff’s counsel asked
Dalsey whether the ATLS guidelines were ‘‘a reasonable
standard of care for this jury to adopt.’’ The defendant
objected to the question, at which point the court dis-
missed the jury from the courtroom. Outside the pres-
ence of the jury, the defendant’s counsel explained his
objection, stating, ‘‘The court’s mindful of my objection
that the jury doesn’t adopt the standard of care. . . .
These physicians all qualified will come in and testify
as to their impression of [the] standard of care. The
jury isn’t the people adopting the standard of care
. . . . They’re going to define the case based upon the
evidence in front of them.’’ In response, the plaintiff’s
counsel contended that the ATLS guidelines not only
inform the standard of care but that they are ‘‘de facto
. . . the standard of care. In other words . . . when
you have a [trauma] patient, you follow [the ATLS]
algorithm.’’ The court agreed with the defendant’s coun-
sel, stating, ‘‘I’m concerned that the jurors are going to
want to look at ATLS to read and say . . . this is what
the standard of care is. Now, obviously, this is a manual
and we’ve heard from different people exactly what it
is, and then each doctor has had their own interpreta-
tions and then . . . indicates what the standard of care
is based on their training and experience not on that
manual. . . . I don’t believe in any case that there’s a
book out there that sets [the] standard of care.’’ The
court also expressed concern that the question asked
by the plaintiff’s counsel may have caused the jurors
to incorrectly believe that they were responsible for
determining the standard of care rather than relying on
expert testimony.
The defendant’s counsel then requested a curative
instruction indicating that ‘‘ATLS is not the standard of
care’’ and that the ATLS guidelines ‘‘[don’t] even apply
to [the defendant] . . . .’’ The court declined to so
instruct the jury, but rather invited both parties to sub-
mit alternative proposed curative instructions on the
issue.10
After the jury reentered the courtroom, the court
reiterated, pursuant to General Statutes § 52-184c (a),
that ‘‘the prevailing professional standard of care for a
given health care provider shall be that level of care,
skill and treatment which, in light of all relevant sur-
rounding circumstances, is recognized as acceptable
and appropriate by reasonably prudent similar health
care providers.’’ The court also clarified that the jury
was not responsible for ‘‘setting’’ the standard of care
and explained to the jurors that ‘‘it’s going to be your
job at the end of this case to determine or to decide
which one of these competing expert opinions you
choose to believe.’’
After Dalsey testified, the defendant called Velmahos
to testify as to the relevant standard of care. Velmahos
testified that he currently teaches the ATLS course and
described the ATLS guidelines as ‘‘one of the most won-
derful things . . . in the world.’’ Specifically, Velmahos
testified that the ATLS guidelines ‘‘produced a standard-
ized language that can be universally applied around
the world to care for the majority of trauma patients.’’
Velmahos clarified, however, that the ATLS guidelines
were only intended as a ‘‘starting place’’ for the care
of trauma patients and that the guidelines ‘‘cannot arrive
at the sophistication that sometimes is required because
[they have] to apply everywhere in the world.’’ Vel-
mahos opined that the defendant did not deviate from
the standard of care by ordering a CT scan and met
the standard of care regarding his duty owed to the
decedent.
Before the close of evidence, the court held a charg-
ing conference off the record. During that conference,
the plaintiff asked the court to reconsider its ruling
regarding the admissibility of the ATLS guideline
excerpts. Later, on the record, the court explained that,
during the charging conference, it had reexamined its
earlier decision to exclude the ATLS excerpts but was
going to reserve its final ruling until it heard argument
from both parties. Thereafter, the defendant’s counsel
renewed his objection to the admission of the ATLS
excerpts, arguing that their admission would confuse
the jury due to their ‘‘unfair characterization of the state
of emergency medicine . . . .’’ The defendant’s coun-
sel also contended that admitting the ATLS excerpts
would prejudice his defense because he ‘‘crafted [his]
examination of . . . witness[es] . . . based upon the
status of the evidence and the relatively clear decision
by the court that those various little snippets of the
several hundred page [ATLS guidelines] weren’t going
to come in.’’ In response, the plaintiff’s counsel, citing
Filippelli v. Saint Mary’s Hospital, 319 Conn. 113, 124
A.3d 501 (2015), argued that Connecticut law favors the
admission of learned treatises.11
Ultimately, the court concluded that it would not
admit the ATLS excerpts. The court determined that
the excerpts were ‘‘thoroughly discussed and examined
by all the experts and . . . to have them admitted at
this point . . . would cause confusion to the jury.’’
After both parties rested, the court charged the jury
on the appropriate standard of care in medical malprac-
tice actions and issued a curative instruction regarding
the ATLS guidelines. The court instructed, inter alia,
that ‘‘[§ 52-184c (a)] . . . provides that . . . [i]n any
civil action to recover damages resulting from personal
injury in which it is alleged that such injury resulted
from the negligence of a health care provider . . . the
claimant shall have the burden of proving by a prepon-
derance of the evidence that the alleged actions of the
health care provider represented a [deviation from] the
prevailing professional standard of care for that health
care provider.
‘‘The prevailing professional standard of care for a
given health care provider shall be that level of care,
skill and treatment which, in light of all relevant sur-
rounding circumstances, is recognized as acceptable
and appropriate by reasonably prudent similar health
care providers . . . .
‘‘Now, you have heard testimony from the medical
experts regarding the standard of care. . . . You have
also heard from counsel and testimony from experts
about ATLS . . . and the standards and guidelines set
forth therein. ATLS does not establish the standard of
care. Rather, the standard of care is that level of care,
skill and treatment which, in light of all relevant sur-
rounding circumstances, is recognized as acceptable
and appropriate by reasonably prudent similar health
care providers.
‘‘However, if you find based on the facts of this case
that the ATLS standards and guidelines comport to the
medical standard of care applicable in this case as deter-
mined by the medical testimony of the experts, then
the ATLS guidelines may be properly considered by you
as evidence when determining whether [the defendant]
deviated from the standard of care.’’
After deliberation, the jury found that the plaintiff
failed to prove, by a preponderance of the evidence,
the prevailing professional standard of care applicable
to the defendant with regard to his treatment of the
decedent.12 Accordingly, the jury returned a verdict in
favor of the defendant.
On December 23, 2019, the plaintiff filed a motion to
set aside the verdict and for a new trial. The plaintiff
argued, inter alia, that the court had abused its discre-
tion by refusing to admit the ATLS excerpts into evi-
dence. Relying on § 8-3 (8) of the Connecticut Code of
Evidence and Filippelli v. Saint Mary’s Hospital,
supra, 319 Conn. 135, the plaintiff contended that Con-
necticut law favors the admission of learned treatises
and, accordingly, that the court lacked a sufficient legal
basis to exclude the excerpts. The defendant subse-
quently filed an objection to the plaintiff’s motion to
set aside the verdict and for a new trial.
On February 4, 2020, the trial court heard argument
on the plaintiff’s motion to set aside the verdict and for
a new trial. Again, the plaintiff argued that the court
had erred in excluding the ATLS excerpts because, in
his view, the ATLS guidelines actually set forth the
relevant standard of care applicable to the facts in the
present action. The plaintiff also contended that the
court’s curative instruction clarifying that the ATLS
guidelines were not the standard of care, but rather
could be seen as informing the statutorily mandated
standard of care, actually created additional confusion
amongst the jurors. In response, the defendant argued
that the jury heard ample testimony regarding the ATLS
guidelines from expert witnesses on both sides and,
therefore, did not need the actual excerpts admitted
into evidence. The defendant also cautioned that the
jurors could have placed too much emphasis on the
ATLS guidelines during deliberations, had the guide-
lines been admitted.
On March 6, 2020, the court denied the plaintiff’s
motion to set aside the verdict and for a new trial. In
its memorandum of decision, the court clarified that it
excluded the ATLS excerpts in order to prevent misun-
derstanding or misapplication of the relevant standard
of care by the jury. The court further reasoned that,
‘‘[b]ecause the ATLS guidelines do not establish the
requisite professional standard of care, and because the
plaintiff was afforded the opportunity to question his
experts as to the ATLS guidelines and make reference
to the appropriate excerpts, the plaintiff was not
deprived of the ability to fully litigate the issue of the
standard of care in this matter. The excerpts the plaintiff
sought to introduce were read to the jury on multiple
occasions during trial, and reference was made to them
during the questioning of his experts, as well as the
defendant’s experts.’’ This appeal followed.
On appeal, the plaintiff claims that the court abused
its discretion by refusing to admit the ATLS guidelines
excerpts into evidence at trial. Relying on Filippelli v.
Saint Mary’s Hospital, supra, 319 Conn. 135, the plain-
tiff contends that the ATLS guidelines satisfied the two
foundational requirements for admission under § 8-3
(8) of the Connecticut Code of Evidence. Specifically,
the plaintiff argues that, because the ATLS guidelines
were ‘‘ ‘[1] recognized as a standard authority in the
field by . . . [an] expert witness . . . and . . . [2]
relied on by that expert during direct examination,’ ’’
the excerpts should have been admitted into evidence.
We are not persuaded.
We begin our analysis by setting forth the appropriate
standard of review and the relevant principles of law
that govern the plaintiff’s claim on appeal. ‘‘It is well
settled that [w]e review the trial court’s decision to
admit [or exclude] evidence, if premised on a correct
view of the law . . . for an abuse of discretion. . . .
Under the abuse of discretion standard, [w]e [must]
make every reasonable presumption in favor of uphold-
ing the trial court’s ruling, and only upset it for a mani-
fest abuse of discretion. . . . [Thus, our] review of
such rulings is limited to the questions of whether the
trial court correctly applied the law and reasonably
could have reached the conclusion that it did. . . .
Moreover, [b]efore a party is entitled to a new trial
because of an erroneous evidentiary ruling, he or she
has the burden of demonstrating that the error was
harmful. . . . [A]n evidentiary impropriety in a civil
case is harmless only if we have a fair assurance that
it did not affect the jury’s verdict. . . . A determination
of harm requires us to evaluate the effect of the eviden-
tiary impropriety in the context of the totality of the
evidence adduced at trial.’’ (Citations omitted; internal
quotation marks omitted.) Filippelli v. Saint Mary’s
Hospital, supra, 319 Conn. 119.
‘‘Under § 8-3 (8) of the Connecticut Code of Evidence,
a statement contained in a published treatise, periodical
or pamphlet on a subject of history, medicine, or other
science or art may be admitted into evidence as an
exception to the hearsay rule if two foundational
requirements are satisfied. First, the work must be rec-
ognized as a standard authority in the field by the wit-
ness, other expert witness or judicial notice, and, sec-
ond, the work must either be brought to the attention
of the witness on cross-examination or have been relied
on by that expert during direct examination. . . .
‘‘Connecticut’s learned treatise rule differs from that
of most other jurisdictions, including the federal rule,
in that we allow the material to be taken into the jury
room as a full exhibit. . . . Most other jurisdictions
bar such material from the jury room, limiting their use
to an oral reading in connection with an expert witness’
testimony. . . . This limitation seeks to avoid the dan-
ger of misunderstanding or misapplication by the jury
and ensures that the jurors will not be unduly impressed
by the text or use it as a starting point for reaching
conclusions untested by expert testimony. . . . The
Connecticut rule, on the other hand, has the advantage
of allowing the jurors to examine more fully the text
of what frequently is a technical and complicated dis-
cussion that may be unfathomable to a nonexpert juror
who merely heard a single oral recitation. Although the
concerns which underlie the federal rule cannot be
completely obviated when the materials are allowed in
the jury room, the dangers can be minimized by the
judicious exercise of discretion by the trial court in
deciding which items ought to be admitted as full exhib-
its.’’ (Citation omitted; internal quotation marks omit-
ted.) Id., 135–36.
Relying on this language, the plaintiff argues that § 8-
3 (8) of the Connecticut Code of Evidence creates a
presumption of admissibility in favor of learned trea-
tises, provided that the treatise is (1) recognized as a
standard authority in the field by expert testimony or
judicial notice, and (2) relied on by an expert during
direct examination or brought to the attention of the
expert on cross-examination. Accordingly, the plaintiff
argues that the court lacked a legal basis on which to
exclude the ATLS excerpts. We find this reading to be
misguided.
Although, Connecticut permits the admission of
learned treatises, our Supreme Court in Filippelli
explicitly held that § 8-3 (8) of the Connecticut Code
of Evidence neither mandates admission nor limits the
trial court’s discretion to exclude evidence that ‘‘carries
the danger of misunderstanding or misapplication by
the jury . . . .’’ (Internal quotation marks omitted.) Fil-
ippelli v. Saint Mary’s Hospital, supra, 319 Conn. 140.
Rather, in upholding the trial court’s decision to restrict
the plaintiff’s use of a learned treatise on cross-examina-
tion, the court in Filippelli clarified that ‘‘the mere
fact that [a] trial court found that the article met the
requirements for admissibility under the learned trea-
tise exception does not mean that the court was
required to allow the plaintiff unfettered use of the
article. Section 8-3 (8) merely provides that materials
which meet the foundational requirements of the
learned treatise exception are not excluded by the hear-
say rule, and does not mandate the admission of such
materials or otherwise purport to circumscribe the
discretion generally afforded to a trial court to deter-
mine the admissibility of evidence in light of the facts
of record. . . . [W]e have long recognized that this
state’s approach to the learned treatise exception,
which allows materials admitted under the rule to be
treated as full exhibits and taken into the jury room
during deliberations, carries the danger of misunder-
standing or misapplication by the jury that other juris-
dictions seek to avoid by precluding the admission of
such materials as full exhibits. . . . We therefore have
explained that trial courts may minimize the risks posed
by the rule by use of the judicious exercise of discretion
. . . in deciding which items ought to be admitted as
full exhibits.’’ (Citations omitted; emphasis added; inter-
nal quotation marks omitted.) Id., 139–40.
Applying the foregoing legal principles to the present
case, we conclude that it was well within the court’s
discretion to preclude admission of the ATLS excerpts.
Even assuming that the excerpts met the requirements
for admissibility under the learned treatise exception,
we cannot conclude that the court abused its discretion
in excluding them on the ground that they may have
confused the jury. Throughout trial and in his posttrial
motion, the plaintiff repeatedly and erroneously con-
tended that the ATLS guidelines actually set forth the
relevant standard of care in the present action. These
assertions required the court to continuously clarify
that the proper standard of care is ‘‘that level of care,
skill and treatment which, in light of all relevant sur-
rounding circumstances, is recognized as acceptable
and appropriate by reasonably prudent similar health
care providers.’’ General Statutes § 52-184c (a). Accord-
ingly, the court correctly determined that, had the
excerpts been admitted, the jury may mistakenly have
assessed the defendant’s conduct only in light of the
ATLS guidelines, rather than determining whether the
defendant deviated from the standard of care.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the plaintiff’s complaint initially named David Reisfeld, a gen-
eral surgeon, and Lawrence + Memorial Hospital, Inc. (hospital) as defen-
dants, the plaintiff subsequently withdrew his claims against Reisfeld and
the hospital. Neither Reisfeld nor the hospital are parties to this appeal.
Accordingly, all references to the defendant are to Bertolozzi only.
2
Specifically, the decedent suffered a femoral fracture and an ‘‘open book’’
pelvic fracture, along with other injuries to his head and chest.
3
Although the defendant ordered that the decedent receive four units of
blood, it was later established, during cross-examination, that the decedent
was administered only two units of blood.
4
The third revised complaint is the operative complaint in this matter.
5
The standard of care for medical malpractice actions is set forth in
General Statutes § 52-184c (a), which provides in relevant part: ‘‘The prevail-
ing professional standard of care for a given health care provider shall be that
level of care, skill and treatment which, in light of all relevant surrounding
circumstances, is recognized as acceptable and appropriate by reasonably
prudent similar health care providers.’’
6
Prior to trial, the defendant filed a motion in limine seeking to preclude
evidence or argument which improperly (1) substituted ‘‘ ‘safety rules’ ’’ for
the statutorily defined standard of care set forth in General States § 52-184c,
(2) invited jurors to use their own common sense in determining the standard
of care rather than relying on expert testimony, or (3) invited the jury to
consider itself the ‘‘ ‘conscience of the community’ ’’ in deciding whether
the defendant deviated from the prevailing standard of care. Specifically,
the defendant argued that admitting ‘‘ ‘safety rules’ ’’ would confuse the jury
because such rules imply that physicians are held to a higher standard than
the statutorily defined duty of care owed by a physician to his or her patient.
After hearing argument from both parties on the defendant’s motion in
limine, the court ruled that it ‘‘would not allow any argument to the jur[ors]
which would imply that they were setting the standard of care as it relates
to the medical treatment of [the decedent], or that their decision carries
weight outside of the courtroom, or any other argument which is in conflict
with the statutory requirement and definition of the standard of care.’’
7
The plaintiff also repeatedly referenced the ATLS guidelines during open-
ing and closing argument, contending that the guidelines were an ‘‘algorith-
mic’’ procedure and a ‘‘proven cookbook’’ that emergency medical profes-
sionals are required to follow when treating trauma patients.
8
FAST is a limited bedside ultrasound performed by emergency physicians
to quickly detect abdominal fluid or cardiac complications.
9
Section 8-3 (8) of the Connecticut Code of Evidence is known as the
statement in learned treatises exception to the rule against hearsay. It pro-
vides: ‘‘The following are not excluded by the hearsay rule, even though the
declarant is available as a witness . . . (8) Statement in learned treatises.
To the extent called to the attention of an expert witness on cross-examina-
tion or relied on by the expert witness in direct examination, a statement
contained in a published treatise, periodical or pamphlet on a subject of
history, medicine, or other science or art, recognized as a standard authority
in the field by the witness, other expert witness or judicial notice.’’ Conn.
Code Evid. § 8-3 (8).
The commentary to § 8-3 (8) of the Connecticut Code of Evidence further
clarifies that ‘‘[§ 8-3 (8)] explicitly permits the substantive use of statements
contained in published treatises, periodicals or pamphlets on direct examina-
tion or cross-examination under the circumstances prescribed in the rule.
In the case of a journal article, the requirement that the treatise is recognized
as a ‘standard authority in the field’ . . . generally requires proof that the
specific article at issue is so recognized. . . . There may be situations,
however, in which a journal is so highly regarded that a presumption of
authoritativeness will arise with respect to an article selected for publication
in that journal without any additional showing. . . . Although most of the
earlier decisions concerned the use of medical treatises . . . Section 8-3
(8), by its terms, is not limited to that one subject matter or format. . . .
Connecticut allows the jury to receive the treatise, or portion thereof, as a
full exhibit. . . . If admitted, the excerpts from the published work may
be read into evidence or received as an exhibit, as the court permits.’’
(Citations omitted.)
10
The parties filed supplemental requests to charge regarding the ATLS
excerpts on November 22, 2019.
11
In Filippelli, our Supreme Court clarified that, unlike most other jurisdic-
tions, which limit the use of learned treatises to an ‘‘oral reading in connec-
tion with an expert witness’ testimony,’’ Connecticut’s learned treatise rule
permits such treatises ‘‘to be taken into the jury room as . . . full exhibit[s].’’
(Internal quotation marks omitted.) Filippelli v. Saint Mary’s Hospital,
supra, 319 Conn. 135. The court explained that the ‘‘Connecticut rule . . .
has the advantage of allowing the jurors to examine more fully the text of
what frequently is a technical and complicated discussion that may be
unfathomable to a nonexpert juror who merely heard a single oral recitation.’’
(Internal quotation marks omitted.) Id., 135–36. However, as we discuss
later in this opinion, the Connecticut rule does not circumscribe a trial
judge’s discretion to limit or exclude learned treatise evidence that has the
tendency to mislead the jury or cause confusion. Id., 139–40. Indeed, our
Supreme Court in Filippelli upheld the trial court’s ruling restricting the
plaintiff’s use of a learned treatise on cross-examination. Id., 140–41.
12
Having found this, the jury did not reach the additional questions of
whether the defendant deviated from the standard of care and whether that
was the proximate cause of the decedent’s death.