concurring in part, dissenting in part.
Although I concur with the majority’s holding as to defendant’s cross-assignment of error of the trial court’s grant of plaintiff’s motion for directed verdict, I respectfully dissent from the majority’s holding as to the trial court’s failure to give plaintiff’s requested jury instructions. Based on this Court’s ruling in the case of Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918 (2003), disc. review denied, 358 N.C. 375, 598 S.E.2d 135 (2004), I would hold that the trial court erred in failing to give the requested instruction as to the mandatory presumption on the issue of medical damages.
Plaintiff contends that N.C. Gen. Stat. § 8-58.1 creates a mandatory presumption on the issue of the amount of medical damages, and that N.C. Gen. Stat. § 8C-1, Rule 301 requires the court to give such an instruction upon request. I agree.
*445N.C. Gen. Stat. § 8-58.1 (2003) sets out. that:
Whenever an issue of hospital, medical, dental, pharmaceutical, or funeral charges arises in any civil proceeding, the injured party or his guardian, administrator, or executor is competent to give evidence regarding the amount of such charges, provided that records or copies of such charges accompany such testimony. The testimony of such a person establishes a rebuttable presumption of the reasonableness of the amount of the charges.
Id. Rule 301 states: “When the burden of producing evidence to meet a presumption is satisfied, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact.” N.C. Gen. Stat. § 8C-1, Rule 301 (2003) (emphasis added).
It is the trial court’s duty to instruct the jury as to the burden of proof upon each issue arising upon the pleadings. King v. Bass, 273 N.C. 353, 354, 160 S.E.2d 97, 98 (1968). “ ‘ “ ‘It is said that “ ‘the rule as to the burden of proof is important and indispensable in the administration of justice. It constitutes a substantial right of the party upon whose adversary the burden rests; and, therefore, it should be carefully guarded and rigidly enforced by the court[s].[’]” ”” ” Id. at 354, 160 S.E.2d at 98 (citations omitted). Our courts have held that
“when a request is made for a specific instruction, correct in itself and supported by evidence, the trial court, while not obliged to adopt the precise language of the prayer, is nevertheless required to give the instruction, in substance at least, and unless this is done, either in direct response to the prayer or otherwise in some portion of the charge, the failure will constitute reversible error.”
McLain v. Taco Bell Corp., 137 N.C. App. 179, 182, 527 S.E.2d 712, 715 (2000) (citation omitted).
In Griffis v. Lazarovich, the plaintiff contended, as in this case, that the trial court erred in failing to instruct the jury that the amount of her medical expenses was presumed reasonable. Griffis, 161 N.C. App. at 442, 588 S.E.2d at 924. The Court in Griffis noted that:
N.C.R. Evid. 301 states that the trial court must instruct the jury when a statutory or judicial presumption exists. N.C. Gen. Stat. *446§ 8C-1, Rule 301 (2001). N.C. Gen. Stat. § 8-58.1 (2001) creates a mandatory presumption of reasonableness for a plaintiff’s medical expenses if the medical expenses are an issue and evidence is presented showing the total charges.
Id. Therefore, Griffis held that an instruction on the mandatory presumption of reasonableness as to medical expenses must be given to the jury when such expenses are at issue and there is evidence of the total charges. In Griffis, the Court determined that the amount of medical expenses had already been stipulated to by the parties and were not at issue, and therefore found no error in the failure to give the instruction. Id.
Here, as the majority notes, the amount of medical expenses was at issue and was contested by both sides. Further, evidence of the total charges for the expenses was presented by plaintiff and records of expenses were submitted into evidence. Therefore, under the statutory requirements of N.C. Gen. Stat. § 8-58.1, Rule 301, and this Court’s holding in Griffis, plaintiff’s request for instructions as to the mandatory presumption of reasonableness for medical expenses was correct in itself and supported by evidence.
Here, a review of the instructions indicates that the substance of the requested instructions was not given to the jury. The trial court instructed the jury that the burden of proof of damages was on plaintiff and that such damages “may include medical expenses, loss of earnings, pain and suffering, and permanent injury.” The trial court also defined medical expenses for the jury. However, nowhere in the instructions did the trial court instruct the jury as to the rebuttable presumption that such charges were reasonable, as required by N.C. Gen. Stat. § 8-58.1.
As the. requested instruction was correct and supported by the evidence, the trial court’s failure to give the substance of the requested instruction constitutes reversible error. McLain, 137 N.C. App. at 182, 527 S.E.2d at 715.1 would, therefore, grant a new trial as to damages.