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DARIYON DRAKE ET AL. v. ANNE S. BINGHAM ET AL. (AC 30265)
DiPentima, C. J., and Beach and Borden, Js. Argued February 17--officially released September 27, 2011

(Appeal from Superior Court, judicial district of Middlesex, Aurigemma, J.) Kathleen L. Nastri, with whom was Cynthia C. Bott, for the appellants (plaintiffs). David J. Robertson, with whom, on the brief, were Madonna A. Sacco, Rachel E. Katz and Jeremy P. Chen, for the appellees (defendants).

Opinion

BEACH, J. In this medical malpractice action, the plaintiffs, Lashekas White, individually and on behalf of her minor son Dariyon Drake,1 appeal from the judgment rendered, following a jury trial, in favor of the defendant Anne S. Bingham, a board certified obstetrician and gynecologist.2 On appeal, the plaintiff claims that the court (1) abused its discretion by admitting evidence of Drake's missed physical therapy appointments, (2) erred by instructing the jury in any fashion regarding the doctrine of mitigation of damages and (3) erroneously charged the jury with a legally incorrect instruction regarding mitigation of damages. We agree with the plaintiff's third claim3 and, accordingly, reverse the judgment of the trial court.4 The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. Drake was delivered by the defendant at Middlesex Hospital on August 23, 2003. During the delivery, the defendant encountered a shoulder dystocia.5 Having recognized that a shoulder dystocia had occurred, the defendant employed several techniques in an attempt to address it.6 After the techniques failed to remedy the shoulder dystocia, the defendant reached behind Drake's head and rotated his body approximately thirty to forty-five degrees and pulled him out to complete the delivery. Following Drake's delivery, it became apparent that his right arm did not have average mobility and was not functioning properly. The plaintiff took Drake to see Kevin Felice, a neurologist at the University of Connecticut Health Center. Felice conducted a series of tests that revealed that Drake had suffered an injury to the nerves of his brachial plexus.7 Drake was then taken to Boston Children's Hospital to undergo a surgical procedure by Peter Waters, an orthopedic surgeon. Waters determined that Drake had sustained multiple avulsions.8 As a result of the avulsions, scarring formed in the area of Drake's nerve injuries and caused the corresponding muscles to become very weak. On May 5, 2008, the plaintiff filed the operative complaint alleging, inter alia, that Drake's brachial plexus injuries were the result of the defendant's ``excessive traction, pressure, and/or torsion on [Drake] following the recognition of the shoulder dystocia . . . .'' The trial commenced on May 6, 2008. The plaintiff contended that Drake sustained the injury to his brachial plexus as a result of the defendant's use of excessive force during the delivery. The defendant argued, however, that she used an appropriate amount of force in delivering Drake and that his injuries were caused by factors unrelated to labor and delivery. On May 29, 2008, the jury returned a verdict in favor of the defendant. This appeal followed. Additional facts and procedural

history will be set forth as necessary. I The plaintiff first claims that the court abused its discretion by admitting evidence of Drake's missed physical therapy appointments. Specifically, the plaintiff argues that such evidence was irrelevant, and that any possible relevance was outweighed by its unfairly prejudicial effect.9 We disagree. The following additional facts are necessary to address the plaintiff's claim. Prior to the start of trial, the plaintiff filed a motion in limine seeking to preclude the defendant from offering any evidence concerning Drake's failure to attend certain physical therapy appointments. The plaintiff argued that evidence of the missed physical therapy appointments was irrelevant because ``there is no testimony . . . linking any missed appointments to . . . any failure of [Drake's] injury to progress . . . .'' The plaintiff further argued that evidence of such missed appointments would be unfairly prejudicial because it would bias the jury against her. The defendant contended, however, that such evidence was relevant to mitigate damages and was not unfairly prejudicial. The court agreed with the defendant and denied the motion. In the course of the plaintiff's testimony on direct examination, her counsel presented her with a note written by Constance Hunter, Drake's therapist, which stated: ``[Drake] is discharged from occupational therapy at this time due to lack of parent follow up with scheduled visits10 and nonresponse to written communication.'' When the plaintiff's counsel asked her why she did not bring Drake to the scheduled visits, she responded that she ``didn't have the transportation to go to take him.'' On May 21, 2008, the plaintiff's counsel offered the videotaped trial deposition of David A. Feingold, a treating physician. The plaintiff's counsel asked Feingold to opine as to ``the significance of the [plaintiff's] failures to . . . have followed through on all of the recommendations for physical therapy.'' Feingold opined that ``more compliance [with physical therapy] is better and I would not have signed off or recommended the rehab I did without the hope that it would be attended.'' On May 7, 2008, the plaintiff's counsel offered Daniel Adler, a pediatric neurologist, as a witness. During defense counsel's cross-examination of Adler, the following colloquy took place: ``Q. And the purpose of that physical therapy is to stretch and reduce the contractures, correct? ``A. Correct. ``Q. And strengthen those muscles that can be strengthened, correct?

``A. Correct. ``Q. And that puts the arm in better balance, correct? ``A. Correct. ``Q. And that makes the patient get better, correct? ``A. Correct. ``Q. So that a patient's failure to participate in that kind of therapy could impede the ability to get better, correct? ``A. Correct. *** ``A. Yes. Patients should participate in physical therapy. ``Q. It's a good idea to do that, correct? ``A. Yes. ``Q. Because it might make them better, correct? ``A. Correct. ``Q. Because we all know that nerves can regenerate, correct? ``A. Correct.'' Also, when Adler was asked whether he had an opinion, to a reasonable degree of medical probability, regarding whether or not the failure to obtain physical therapies and the failure to attend medical appointments made a substantial difference in the outcome for Drake, he responded: ``I think he'd be better with more therapy, but not to the degree that his arm would be much different than it is today.'' We begin our analysis by setting forth our standard of review and relevant legal principles. ``The trial court's ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility . . . of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.'' (Internal quotation marks omitted.) Buchanan v. Moreno, 117 Conn. App. 732, 734, 980 A.2d 358 (2009). ``Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. Conn. Code Evid.

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