concurring specially.
Because I agree with the majority that the presumption of due care charge given by the trial court in this case did not unfairly impact the plaintiff’s case, I concur in affirming the trial court’s judgment. However, because the charge on the presumption of due care has the potential to be confusing and misleading and is redundant to the standard charge on the plaintiff’s burden of proof, I disagree with the majority’s approval, albeit in modified form, of the continued use of the charge.
Initially, I note the presumption of due care “is . . . properly understood as a way of allocating the burden of proof in a malpractice case.”18 Reflecting this understanding is this Court’s decision in Shea v. Phillips,19 which, it appears, is the case in which the presumption originated in this State. In Shea, this Court stated that, in a medical malpractice action, there is a “presumption . . . that the medical or surgical services were performed in an ordinarily skil[l]ful manner.”20 The cases and treatises cited by Shea for this proposition, however, stand only for the proposition that “in a medical malpractice case the burden rests with the plaintiff to prove a lack of due care, skill, or diligence.”21 In this regard, the presumption of due care reflects the substantive rule that there is no “presumption of negligence . . . because unfavorable results follow medical treatment”22 and that the plaintiff in such an action should, as a matter of policy, have the burden of *307establishing the lack of due care by a preponderance of the evidence.23
Because the presumption of due care is merely a way of placing the burden of proof on the plaintiff in a malpractice action, a charge on the presumption adds nothing to the standard charge on the plaintiff’s burden of proof and is redundant.24 When a presumption such as the presumption of due care “ ‘is advanced in favor of one upon whom the burden of proof does not. rest, it really adds nothing to the duty or burden of the other party, since the latter is already under the obligation to present proof in support of his contention, and the presumption only reiterates that obligation.’ ”25 McCormick on Evidence notes that when a presumption operates to assign the burden of persuasion on an issue, as does the presumption of due care, there is no need to charge the jury on the presumption, as the charge on the burden of persuasion adequately informs the jury of the policies underlying the presumption.26 The redundancy of a charge on the presumption of due care, coupled with the fact that a charge on the plaintiff’s burden of persuasion adequately informs the jury of the policies underlying the presumption, is reason enough to forego a charge on the presumption.
In addition, as is demonstrated by the difficulty that courts have in determining the meaning and role of presumptions, charging on the presumption of due care can potentially be misleading and confusing to a jury that is unversed in the law.27 For example, a charge on the presumption of due care may be misleading in that it might cause certain jurors to think that the presumption establishes “ ‘some inherent probability’ ” that the defendant exercised due care.28 Furthermore, the charge might be confusing to a jury in that it adds an extra layer of consideration to the jury’s deliberations by requiring it not only to determine whether the plaintiff has shown by a preponderance of the evidence that the defendant was negligent, but also to determine the moment at which the plaintiff’s evidence is sufficient to discount or overcome the presumption.29 In my opinion, a charge on the presumption of due care unnecessarily complicates *308the jury charge and introduces possible confusion into the jury’s deliberations. Instead of sanctioning such complication and confusion, this Court should strive to simplify jury instructions.
Moreover, because the standard charge on the plaintiff’s burden of proof informs jurors that the plaintiff must prove that the medical professional did not perform his or her services with the due care and skill exercised by his profession and that the plaintiff must ordinarily present expert witnesses such as doctors to meet his burden, the standard charges are sufficient, without the presumption, to satisfy the concern expressed in the majority opinion that jurors judge medical professionals “based on the evidence of witnesses who . . . have the requisite [medical] training.”30
Because a charge on the presumption of due care is redundant to the standard charge on the plaintiff’s burden of proof and unnecessarily creates the opportunity for confusion and error, I would disapprove of the giving of such a charge. However, because the charge in this case was one sentence of an otherwise complete and appropriate charge on the plaintiff’s burden of proof, and because the evidence of the appellees’ negligence was weak, I conclude that any error in charging on the presumption of due care was harmless.31
For the foregoing reasons, I concur specially in the majority opinion.
Thomas A. Eaton, Res Ipsa Loquitur and Medical Malpractice in Georgia: A Reassessment, 17 Ga. L. Rev. 33, 39 (1982). Accord Matheny v. Fairmont General Hosp., 575 SE2d 350 (W. Va. 2002); Wardell v. McMillan, 844 P2d 1052, 1063-1065 (Wyo. 1992); Gaston v. Hunter, 588 P2d 326, 348-349 (Adz. App. 1978).
213 Ga. 269 (98 SE2d 552) (1957).
Id. at 271.
Eaton, 17 Ga. L. Rev. at 40. In addition, in Shea, this Court did not approve of the giving of a charge on the presumption of due care, but rather simply referred to the presumption in evaluating whether a directed verdict was appropriate in a medical malpractice case. Shea, 213 Ga. at 271-272.
Wardell, 844 P2d at 1064.
Wardell, 844 P2d at 1064; Eaton, 17 Ga. L. Rev. at 40; Matheny, 575 SE2d 350; Gaston, 844 P2d at 348-349.
Eaton, 17 Ga. L. Rev. at 41.
Gaston, 588 P2d at 349, quoting Board of Water Commissioners v. Robbins & Potter, 74 A 938, 945 (1910).
2 John W. Strong, McCormick on Evidence, § 344, at 452 (5th ed. 1999).
“The baffling nature of the presumption as a tool for the art of thinking bewilders one who searches for a form of phrasing with which to present the notion to a jury. Most of the forms have been predictably bewildering.” McCormick on Evidence, § 344, at 450.
See Eaton, 17 Ga. L. Rev. at 42, n. 40.
See McCormick on Evidence, § 344, at 450-452 (describing in part the difficulty a jury may have in dealing with charges on presumptions).
Majority op. at 305.
See Dyer v. Souther, 274 Ga. 61, 62 (548 SE2d 1) (2001) (in case involving undue influence in the execution of a will, this Court held that error in including a “definite tilt” charge when charging on the preponderance of the evidence was harmless because “the charge as a whole was fair and adequately explained the burden of proof and the evidence of undue influence was extremely weak.”).