dissenting.
Standard jury charges in Georgia medical malpractice cases since Shea v. Phillips, 213 Ga. 269 (98 SE2d 552) (1957), routinely advise the jury it should presume medical services are performed in an ordinarily skillful manner. Plaintiffs contend this presumption instruction misleads the jury into believing that a malpractice plaintiff bears a double burden of proving his case. The majority acknowledges that the challenged charge may be confusing to jurors but holds that the charge as a whole did not place undue emphasis on plaintiffs’ burden to prove the defendants’ lack of due care or impose a double burden of proof; the special concurrence holds that the giving of the challenged charge was erroneous but not reversible error. Because I believe the presumption charge at issue serves no purpose other than to amplify the fact that a plaintiff in a medical malpractice action bears the burden of proof by a preponderance of the evidence and the majority’s modified charge does nothing to reduce the *309potential to mislead or confuse the jury into believing that the plaintiff bears a double burden of proof, I dissent.
The term “presumption” in the context of medical malpractice actions is clearly used as a shorthand for assigning the burden of proof; it does not involve a shifting of the burden of proof to the plaintiff in the traditional sense, as the plaintiff already has the burden of proof under the ordinary rules governing negligence actions. To add to that burden the obligation to overcome a presumption of due care places upon a plaintiff a double burden. See Peacock v. Piper, 504 P2d 1124, 1127 (Wa. 1973). Numerous other jurisdictions have resolved the specter of imposing a double burden of proof by allowing for an instruction on the plaintiff’s burden of proof, but omitting an instruction as to the alleged presumption of due care. See, e.g., Matheny v. Fairmont General Hosp., 575 SE2d 350 (W. Va. 2002); Wardell v. McMillan, 844 P2d 1052 (Wyo. 1992); Gaston v. Hunter, 588 P2d 326 (Ariz. App. 1978); Richmond v. AF of L Medical Service Plan, 218 A2d 303 (Pa. 1966). As the survey of law undertaken by the Court of Appeals of Arizona in Gaston shows:
If the [presumption charge] is intended to create a presumption in favor of a defendant.physician, it is a strange species of presumption indeed. It does not fit the typical description of a presumption in a civil case — that is, a rule that shifts the burden of producing evidence to the party against whom the presumption operates. . . . Rather, this “presumption” appears to do no more than merely restate the familiar rule that the plaintiff has the burden of proving the defendant negligent.
Gaston, supra, 588 P2d at 348-349.
Here, the trial court instructed the jury on the appropriate burden of proof and then instructed the jury that
[i]n Georgia the law is such where there is a presumption that medical, surgical, and nursing services were performed in an ordinarily skillful manner, and the burden is on the Plaintiffs to show a want of due care, skill, and diligence.
Such a charge misleads the jury into believing that a plaintiff must do more than satisfy the applicable burden of proof by a preponderance of the evidence but must also overcome the legal presumption that the medical professionals performed their duties in an ordinarily skillful manner. I would conclude that under any circumstance the charge is unnecessary in order to insure that a jury in a medical malpractice case does not draw invalid conclusions or misapply the preponderance burden. Because “a presumption once established, *310does not vanish in the face of evidence to the contrary, but vanishes if at all, in the jury room,” Miller v. Miller, 258 Ga. 168, 170 n. 6 (366 SE2d 682) (1988), reiterating the presumption to the jury which already has been informed of the plaintiff’s burden of proof unduly underscores to the jury the burden of persuasion placed on the plaintiff.
Decided March 10, 2003. Doffermyre, Shields, Canfield & Knowles, Foy R. Devine, Georgiana Rizk, for appellants. Downey & Cleveland, Russell B. Davis, Robert C. Harrison, Tisinger, Tisinger, Vance & Greer, David H. Tisinger, David F. Miceli, Kenneth B. Crawford, for appellees. Oates & Courville, Traci G. Courville, Henry, Spiegal, Fried & Milling, Wendy G. Huray, Bird & Mabrey, Carla R. Johnson, Pope, McGlamry, Kilpatrick & Morrison, William U. Norwood III, Watkins, Lourie & Roll, Robert D. Roll, Cochran, Cherry, Givens, Smith & Sis-trunk, Hezekiah Sistrunk, Jr., Jane L. Sams, Reynolds & McArthur, Charles M. Cork III, Love, Willingham, Peters, Gilleland & Monyak, Robert P. Monyak, Lucas W. Andrews, Ashley H. Hill, David A. Cook, amici curiae.Nor can I agree with the special concurrence that the giving of the charge was harmless error. The potential to mislead the jury into imposing a double burden of proof or, at the very least, confusing the jury by failing to tell them how the presumption may be overcome, results in error in any case, regardless of the strength of the plaintiff’s evidence of negligence and regardless of the number of times the court may have properly instructed the jury on the burden of proof. The prejudicial impact of reiterating plaintiffs’ burden of proof is especially apparent in cases such as this where in opening and closing statements counsel for the medical professionals emphasized both the burden of proof and the burden of overcoming the presumption.
Accordingly, I would find that the presumption charge is susceptible to more than one interpretation and improperly leaves the jury to consider whether the charge is simply redundant and unnecessary or imposes an additional burden of proof on the plaintiff. Because there is no way for this or any other court to determine which interpretation juries will apply, I dissent.