dissenting.
I must dissent. In Division 2, the majority states that “the remarks on Mr. Horton’s emergency room X-ray requisition order are key to framing the standard of care upon which to measure Dr. Eaton’s diagnosis of Mr. Horton’s X-rays.” This is correct, but insufficient to state with accuracy the issue before us. I observe that it was absolutely crucial to the Hortons’ case that they be allowed to suggest without contradiction that the nonexistent requisition form would *808have indicated in detail Mr. Horton’s symptoms. This unsupported position was contradicted, however, and all of the evidence indicates that the scenario put forth by the Hortons is unlikely.
The majority cites OCGA § 24-4-22, which provides: “If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.” (Emphasis supplied.) Even if it is assumed that Dr. Eaton should not have testified as to what he typically sees on requisition forms because it might implicate the habit or custom of others, such error was manifestly harmless and merely cumulative of other evidence presented. The Hortons’ own expert testified that “fell from tree,” or a similar statement, “is as much information as [radiologists] frequently get.”
The evidence is uncontradicted that Dr. Eaton never examined Mr. Horton; that with respect to the information he receives on a patient, he essentially was at the mercy of the treating physician (who was not called as a witness); and that typically radiologists do not get the information they should be given. Moreover, Dr. Eaton testified that he has made efforts to improve the quality of information typically found on x-ray requisition forms, but to no avail. Finally, I note that there is no evidence that Dr. Eaton is responsible for the “mysterious disappearance” of the x-ray requisition form. Mr. Horton was not in any sense Dr. Eaton’s patient, and it is just as plausible to speculate that Horton’s treating physician had reason to remove the form from Horton’s medical file.
The majority twists the case before us by suggesting that Dr. Eaton had no evidence to support his “defense” that he exercised the proper standard of care. On the contrary, the Hortons could present no evidence indicating that Dr. Eaton failed to exercise that standard, and there is no evidence to support an inference against Dr. Eaton under OCGA § 24-4-22.
I also must dissent as to Division 3, because, as the majority neglects to disclose, testimony was also given as to the proper standard of care assuming that the requisition form gave detailed information. Since the defense expert testified as to a range of hypothetical facts that would be both favorable and unfavorable in evaluating Dr. Eaton’s conduct, I see no danger that the jury assumed facts not in evidence in reaching its verdict.
No harmful error has in any way tainted the verdict reached in this case. I would affirm.
I am authorized to state that Judge Andrews joins in this dissent.
*809Decided December 5, 1994 Reconsideration denied December 20, 1994 Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, Charles R. Carson, for appellants. Alston & Bird, Judson Graves, Holly B. Barnett, for appellee.