I respectfully dissent. While I agree with the majority that the “good faith” jury instruction was erroneous, I also find that the charge was prejudicial and would affirm the Court of Appeals.
If the jury believed Ardis’s assertion that Sessions performed a manipulation under the circumstances she described, the jury must still have found that her version of the facts demonstrated negligence on the part of Sessions, in order for Ardis to prevail. See Hurd v. Williamsburg Co., 353 S.C. 596, 615, 579 S.E.2d 136, 146 (Ct.App.2003), aff'd, 363 S.C. 421, 611 S.E.2d 488 (The burden of proof in a negligence action is on the plaintiff to establish the negligence of the defendant). At trial, Ardis presented evidence to show not only that Sessions performed the manipulation, but also that in doing so he breached the standard of care. The trial court’s “good faith” instruction directly addresses this aspect of the case and, therefore, prejudiced Ardis.
I disagree with the majority’s reading of Sessions’s testimony as acknowledging that it would have been malpractice to perform a manipulation on February 19 in light of Ardis’s reported injury that day. Contrary to the majority’s reading, the record indicates that Sessions believed the issue whether the actions alleged by Ardis constituted negligence to be very much in dispute. At the conclusion of his case, Sessions moved for a directed verdict, arguing that, even assuming that Sessions performed an adjustment, as Ardis claimed:
[tjhere has been absolutely no testimony in this case from [Ardis’s expert] or anyone else that if Ms. Ardis presented to Doctor Sessions on February the 19th in the condition that she says that she was in, that there was any contraindication for Doctor Sessions to give her an ordinary chiropractic adjustment on that day. There is absolutely no testimony that there was a deviation from the standard of care by Doctor Sessions on February 19 in giving this lady an adjustment.
*535We simply do not know whether the jury, in rendering a defense verdict, believed Sessions’s testimony that no manipulation was performed on the day in question or believed Ardis’s testimony that a manipulation was performed, but found that to perform a manipulation under the circumstances did not constitute malpractice. In my opinion, the use of the subjective “good faith” element in the jury instruction imposed an unrealistic burden on Ardis in her effort to prove negligence, and the jury may have found against Ardis due to her failure to meet such a standard. See McCourt by and through McCourt v. Abernathy, 318 S.C. 301, 457 S.E.2d 603 (1995). I would therefore affirm the Court of Appeals.5
WALLER, J., concurs.. In briefs and in oral arguments, both parties also addressed various evidentiary issues from the trial court. Because evidentiary holdings of the initial trial are not binding on remand, I would find it unnecessary to address these points. See Hosford v. Wynn, 26 S.C. 130, 1 S.E. 497, 499 (1887) (new trial opens anew all questions in the case).