MARY JOE BEACH and JAMES W. BEACH,

Appellants,

v.

MARK L. LIPHAM, M.D., and TANNER MEDICAL CENTER,

Appellees.

Statement of Interest of Amicus Curiae. The Georgia Trial Lawyers Association, comprised of over 2,000 members of the State Bar of Georgia, is committed to the preservation of the jury system. It submits the following brief against positions advocated by the appellees because the jury system will not function properly when confronted with one-sided, misleading jury charges, of which the instruction at issue is a classic example.

The instruction on the "presumption" of skillful performance is routinely given in a context that is systematically slanted toward the defense, as documented in § 1. Charges in medical malpractice cases invoke the trial judge's mantle of impartiality to explain significant ways of looking at the burden of proof and the standard of care in which the plaintiff may not recover. The charge constitutes an additional argument for the defense, and the trial judge should not engage in such argument.

This amicus will show in § 2 that the "presumption" of skillful medical services is not a presumption of law, but a procedural "presumption" that simply re-phrases the allocation of the burden of proof to plaintiff-patients against medical professionals. Later cases treating this "presumption" as evidentiary were mistaken both because no case gave it such status and because, under Georgia law, only the medical profession is competent to pass on medical questions.

§ 3 documents the misleading character of the charge, which suggests that the law, or the judge as its personification, has determined that it is more likely than not that the questioned medical services were rendered with the appropriate degree of care and skill. There is no way to control how a lay juror will interpret language that "the law presumes" the skillful performance of medical services, or to ensure that they will interpret it in a way consistent with the simple preponderance burden. There is substantial reason to think that one or more jurors may misinterpret the language as increasing or altering the plaintiff's burden. Nor should the jury's discretion to resolve this ultimate fact issue be influenced by a hint that the law has even provisionally decided the issue in favor of the defendant. The danger of misleading the jury about the correct standard and thus altering the outcome requires that this instruction be abolished.

Finally,§ 4 will show that, except in unusual cases, charges on presumptions in general, and presumptions about negligence in particular, are not to be given to the jury. Thus, the charge at issue in this case should no longer be given.

JURY INSTRUCTION PRACTICE IN MEDICAL NEGLIGENCE CASES NEEDS TO BE REFORMED BECAUSE THE CURRENT PRACTICE IS SLANTED IN FAVOR OF DEFENDANTS.

Jury instructions in medical malpractice cases have become heavily slanted toward the defense. In virtually every case, as in this one, repetitive and argumentative instructions draw out every negative implication of the burden of proof and standard of care, thereby stressing the burden and appearing to align the trial judge with the defendant. To elaborate on the burden of proof and the standard of care is to argue the law, and argument should be reserved for the lawyers, not the trial judge.

The law of medical negligence should be among the simplest of tort cases to submit in charge to a jury. There is almost never a specific standard of care defined by law, just the general standard of care set forth in OCGA § 51-1-27. There is almost never an issue of comparative negligence. Overstreet v. Nickelsen, 170 Ga. App. 539, 540-41 (1) (1984). The first five short paragraphs of the trial court's charge on liability in this case would tell the jurors everything they needed to know about the standard of care for the doctor and nurses. T-1901-02.⁽¹⁾

Unfortunately, in this case and many other medical negligence cases, jury instructions become an additional argument for the defense. See, e.g., Lewis v. Emory University, 235 Ga. App. 811, 820 (4) (1998) (trial court instructed five times that jury could not speculate or guess in reaching a verdict); Hardy v. Tanner Medical Center, Inc., 231 Ga. App. 254, 257 (6) (1998) (multiple jury instructions on sympathy and the burden of proof); Dent v. Memorial Hosp. of Adel, Inc., 227 Ga. App. 801, 810 (1997), rev'd 270 Ga. 316, 317 (1998) (disjointed charge contained 37 instructions); Crumbley v. Wyant, 188 Ga. App. 227, 229-230 (5) (1988) (lengthy charge, with numerous repetitions excused as more clearly explaining the applicable principles and not as emphasizing them); Jackson v. Rodriquez, 173 Ga. App. 211, 213 (2) (1984) (in nineteen pages of instructions, court charged four times that physicians are presumed to be skillful).

In this case, after fairly instructing on the standard that would control the question of negligence, the court proceeded to instruct that (1) the law presumed the health services were performed in an ordinarily skillful manner, (2) a "mere difference in views" does not authorize recovery if each view is acceptable and customary, (3) a health provider is "not an insurer," (4) "an unintended result does not raise even an inference of negligence," (5) unfavorable results do "not even raise a presumption" of negligence, (6) health providers "cannot always effect a cure," (7) the law does not require "nearly perfect or perfect results," and (8) health providers are "not responsible in damages for lack of success or honest mistakes or errors in judgment" unless they were negligent. T-1902-03. Thus, there was one complete and neutral statement of the controlling principles followed by eight ways of re-phrasing them in a manner that was negative toward the plaintiff's claim. The defendants did not need to argue the application of the law because the trial court argued it for them.

To say this is not to single the trial court out for individualized criticism; this is simply how jury trials are conducted across the state as shown by the cases cited above and the regular experience of members of this amicus. Defense counsel have identified every snippet of favorable language from every appellate medical malpractice opinion and submitted them in proposed instructions. Trial courts have typically given most of them, and typically one-sided jury instructions have resulted, as shown in the cases above.

Before 1965, there might have been more of an excuse for giving every conceivable legal implication of the burden of proof and the standard of liability. Until then, Georgia law provided:

In any court of record ... a new trial may be granted when the presiding judge may deliver an erroneous charge to the jury ... or refuse to give a pertinent legal charge in the language requested, when the charge so requested shall be submitted in writing.

Ga. Code Ann. § 70-207. As a result of this statute, which was the product of an "equalitarian and antiprofessional revolt"⁽²⁾ in the mid-nineteenth century that reduced judges to the status of umpires of charges requested by the parties, trial judges were required to give "numerous unnecessary and redundant requests" in their instructions to juries. Gates v. Southern R. Co., 118 Ga. App. 201, 203-04 (3,a) (1968).

After 1965, it is no longer necessary to give each correct instruction proposed by counsel, but the habit has been hard to break in medical malpractice cases. Unfortunately, the length of a charge can promote undue emphasis of points so as to be an unfair, unbalanced statement of law. Murray v. State, 253 Ga. 90, 93 (4) (1984); Wendlandt v. Shepherd Constr. Co., Inc., 178 Ga. App. 153, 155-56 (2) (1986). Repetitious charges can "set impartiality at risk." Lewis v. Emory University, 235 Ga. App. 811, 820 (4) (1998). A juror listening to the eight negative elaborations on the burden of proof in this case could get the distinct impression that the trial court was inclined to side with the defense. This is true even though, as judges and lawyers, we may conclude that the trial judge charged as he believed the law required with complete integrity and impartiality. This appearance of partiality is typical in medical malpractice cases. It is unfair and should be stopped.

THE PRESUMPTION OF SKILLFUL MEDICAL SERVICES IS A PROCEDURAL PRESUMPTION RELATING TO THE ALLOCATION OF THE BURDEN OF PROOF, NOT A PRESUMPTION OF LAW.

At the outset, the Court should be clear what the contested instruction is and is not. The "presumption" of skillful performance was born as a corollary of the burden of proof, nothing more. It is not a rebuttable presumption of law; indeed, it could not be such a presumption because Georgia law prohibits judges and other non-physicians from pronouncing upon the quality of medical care. Nor is it what the defendants alternatively say it is, a statement of the principle that the standard of care may be proven only by expert testimony.

The contested instruction states a point of law that is simply an allocation of the burden of proof. The first case to assert this "presumption," Fincher v. Davis, 27 Ga. App. 494, 494 (2) (1921), used it exclusively as a procedural device so that a physician suing the patient for fees did not need to prove that the services were rendered skillfully; instead, skillful performance would be presumed, and the burden placed upon the defendant-patient to show any negligence. The "presumption" was nothing more than this: in a suit by the doctor for fees, the doctor has no burden to show lack of negligence; if negligence is an issue, it must be raised and proven by the patient. Fincher did not say that we, the judges of the Court of Appeals, have looked into the matter and believe it more likely than not that this doctor performed this operation (or all doctors perform all operations) with ordinary care. Fincher simply held that if neither party presented evidence on the skill of the performance of the medical services in issue, the doctor can still collect a fee. In medical malpractice cases, such a "presumption" makes no difference at all because it imposes the burden where it already rests, on the patient-plaintiff.

In the next case to use the presumption of skill language, Shea v. Phillips, 213 Ga. 269, 271 (1957), the language was simply a preface to this Court's discussion of whether the patient's burden of proof can be sustained without expert testimony. The presumption and burden were the subject of only the first sentence of division 2, followed by citations for them. Afterwards, citing Aristotle and other cases, this Court held that expert testimony is ordinarily required to sustain the burden in a malpractice case. The Court did not return to the "presumption," let alone its suitability as a jury instruction.

In Hopper v. McCord, 115 Ga. App. 10, 11 (3) (1967), the Court held that the contested instruction was "merely instructing the jury that the burden was on the plaintiff to prove his case." The Court in Hopper, like Fincher and Shea, correctly linked the instruction with the burden of proof. The point of law is procedural, relating to the burden of proof, rather than factual, relating to the quality of medical services generally.

In 1984, the procedural presumption was first recognized, erroneously, as a rebuttable presumption of law. In Overstreet v. Nickelsen, 170 Ga. App. 539, 542-44 (4) (1984), the Court stated that the presumption "falls into the category of a rebuttable presumption of law" (id., 543) without recognizing the possibility that it was merely a procedural presumption, a category overlooked by the Code, Agnor's Evidence, and the other sources used in Overstreet. Overstreet declared the effect of presumptions in Georgia "settled" by quoting Agnor for the proposition that "most" presumptions are rebutted only in the jury room. Id., 544. It then cited a number of cases holding it appropriate for judges to instruct on rebuttable presumptions, noting only two cases reaching a contrary conclusion without reconciling them with the "settled" rule. Id.

In § 4 below, this amicus will show that Agnor and Overstreet took an insufficiently broad survey of the law of presumptions in Georgia and that the cases authorizing a jury instruction on a presumption were the exception, not the rule. But more fundamentally, a presumption of law that medical services were rendered with ordinary care is a legal impossibility. Overstreet correctly identified presumptions of law as "conclusions and inferences drawn from the given facts," or "circumstantial inference[s] selected by the law as the most rational hypothesis from the given facts." Id., 543. A presumption of law to this effect would mean that it is more likely than not, or "the most rational hypothesis," that the medical services in this and all other cases were delivered with ordinary skill. There has never been a case which reached this conclusion, and there could be no such case, because under settled Georgia law only the medical profession has the competence to make such findings. See e.g., Shea v. Phillips, supra, citing Aristotle and other authorities. Consequently, judges and lawyers are incompetent to create or recognize any presumption of law on the degree of care generally practiced by medical practitioners. By contrast, judges have the proper authority to allocate the burden of proof, and an allocation of the burden of proof is all this "presumption" has ever been.

The "presumption" is not what the defendants alternatively say it is, a statement of the rule that jurors must rely upon the testimony of medical experts for the standard of care and may not come up with their own lay standards. TMC Br. 4-5, 12-17; Lipham Br. 22-23. That point was covered by an instruction that actually says it, T-1902, and the cases the defendants discuss do not link this proposition to the presumption at issue here. To the contrary, those cases apply to judges as well as juries and thus undermine the ability of the judiciary to create a presumption of law regarding the quality of medical services.

POTENTIALLY MISLEADING JURY INSTRUCTIONS SUCH AS THE "PRESUMPTION" IN THIS CASE SHOULD BE ABOLISHED.

The contested instruction is potentially misleading because it overstates the burden of proof and because it invades the province of the jury to make the finding of negligence free of outside influence. This Court should disapprove the instruction as it has done in other similar cases discussed below.

The charge that the law presumes that medical services were performed in an ordinarily skillful manner is misleading in several respects. As shown above in §1 of this brief, it is a part of a series of instructions that overemphasize the burden of proof (by drawing repetitive negative implications from the basic legal standards) and suggest to lay jurors that the trial judge leans toward the defendant's side of the case. The contested instruction itself suggests, contrary to fact, that the law in Georgia, or its personification in the trial judge, has made a preliminary finding in favor of the defendant, which was addressed in § 2 above.

The presumption instruction is also potentially misleading to non-lawyers regarding the quantum of proof necessary for the plaintiff to win. As judges and lawyers with years of legal education and experience, we would understand the contested charge as equivalent to a restatement of the burden of proof. We would understand the word "and" that joins the presumption instruction with the (repeated) instruction that the burden is on the plaintiff as "or in other words, ..." or "which is to say, ... ." We would do so because, with our background, we know that no finding has really been made that this defendant acted non-negligently. We know that any such "presumption" is really only a way of stating that the burden is on the plaintiff on this issue, as on all issues. We know that presumptions and burdens are correlative terms.

The perspective for evaluating this instruction, however, is that of a lay juror. Smoky, Inc. v. McCray, 196 Ga. App. 650, 656 (1990). The lay juror does not know how these two clauses fit together legally and, instead, takes them as supplying two different sets of information, as providing item #1 "and" item #2 of information. The juror hears that the defendants are presumed free of negligence as a distinct fact. This discrete information can be misused to tip the balance in a close case, which applies to almost all medical malpractice cases that reach trial, and in a case involving circumstantial evidence of the negligent act, as here. The juror need not think hard about the close or circumstantial case because the hard work has been done by the law. The charge can be misused to impose an erroneously high burden of proof, namely, the burden to convince the juror not just that the defendant was probably negligent, but also that the law (or the judge) was wrong in presuming otherwise.

These observations are not just the view of a plaintiff's lawyer. This Court and the Supreme Court of the United States have held that charges of the form "the law presumes ...," such as the one given in this case, can be misleading. In some cases they may be understood by a juror as establishing a mandatory presumption and should be abolished or replaced by instructions on permissive inferences. See Williamson v. State, 248 Ga. 47, 58-59 (2) (1981), noting the disapproval in Sandstrom v. Montana, 442 U.S. 510, 515 (1979), of an instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts."

In other cases, it has been held erroneously misleading to instruct on presumptions without stating that they are rebuttable. Merrell v. Beckwith, 263 Ga. 779, 782 (1994) (a charge on the rebuttable presumption of fraud based on grantor's continuing possession of deeded property was "incomplete and misleading absent more elaborate instructions pertaining to legal presumptions, how they may be rebutted, and the jury's duty as it relates to such presumptions"); Godwin v. Caldwell, 231 Ga. App. 523, 525 (1998); Bakery Services, Inc. v. Thornton Chevrolet, Inc., 224 Ga. App. 31, 35-36 (8) (1996).

Still other cases have held that adding language that the presumption is rebuttable will not save a presumption charge that could be understood as impermissibly altering the burden of proof. Francis v. Franklin, 471 U.S. 307 (1985) (holding unconstitutional Georgia's instruction that "acts of a person of sound mind and discretion are presumed to be the product of a person's will, but the presumption may be rebutted" because it could be understood as shifting the burden of proof to the defendant). As shown above, the instruction can be understood to increase the plaintiff's burden impermissibly. There is no reason to think that a lay juror, confronted with a charge that "the law presumes" the non-negligent performance of medical services, would understand it in a legally acceptable way. The dangers of misunderstanding this instruction by a lay juror require that it be abandoned.

The instruction is also dangerous for a related reason: it invades the province of the jury and constitutes a comment on the evidence. If there is any evidence that could sustain a finding either way, it is the role of the jury, exclusively, to decide whether the defendant was negligent, and the trial court may not do so without invading the province of the jury. The contested instruction is an intrusion by the trial court on the jury's exclusive province because it suggests a provisional result.

Because the constitution reserves fact finding to the jury, an instruction may not direct the finding of any fact. Wadkins v. Smallwood, 243 Ga. App. 134, 139-40 (5,a) (2000). In the context of tort law, this means that a trial judge may not tell a jury what acts would or would not constitute negligence unless those acts are declared by statute to be negligent. Atlanta & W. P. R. Co. v. Hudson, 123 Ga. 108, 109 (2) (1905); Savannah, F. & W. R. Co. v. Evans, 115 Ga. 315, 317-18 (1) (1902). It follows that an instruction should not say what acts are presumed to be or not be negligent unless declared so by statute.

Charging on the presumption involves judicial interference with the unfettered discretion of the jury to decide whether the defendant was negligent. At best, it is a comment on one of the conclusions that may be drawn from the evidence (the jury may infer skillful performance from evidence that medical services were provided), and it selectively omits other ways the jury may reason and other conclusions it may reach. This instruction therefore has the characteristics of an argument, which should always be reserved for the lawyers. This Court has stated that the trial judge should not emphasize particular circumstances in instructing on permissive inferences that the jury may draw, unless the jury seeks the clarification, Clark v. State, 265 Ga. 243, 246 (3,c) (1995) (trial court should not give instruction that if a person uses a deadly weapon, the jury may infer an intent to kill); Wood v. State, 258 Ga. 598, 599 n.2 (1988) (same); Harris v. State, 273 Ga. 608, 609-10 (2) (2001) (reversal for this reason). Judges should not give the slightest appearance of drawing a conclusion about the issue of negligence, and thus should not give the contested instruction.

The cases also recognize that, even if such a charge states a correct point of law, it risks suggesting that the judge has an opinion about what the evidence has shown and the conclusion to be drawn from it. Cameron v. State, 256 Ga. 225, 227-28 (1986) (Bell, J., concurring), adopted in Renner v. State, 260 Ga. 515, 518 (3,b) (1990) (mentioning "flight" in the instruction intimates that the trial judge has an opinion that flight occurred and that the defendant is guilty). The judge should be especially wary of appearing to take sides because "when the judge enters upon the arena occupied by the contending parties, he brings to the combat with the witnesses the overwhelming weight which attaches to the idea of judicial impartiality." Ford v. State, 2 Ga. App. 834, 837 (2) (1907). The appearance of impartiality must be maintained. "[N]o principle or practice tending to insure the impartial administration of justice and the purity of jurors, should in the slightest degree, be abandoned or impaired." McMichael v. State, 252 Ga. 305, 309 (4) (1984). This charge should be disapproved because it places the trial court, even provisionally, on the side of a finding for the defense that the defendants were not negligent.

This Court should dispose of the presumption charge for the same reasons that it disposed of the "legal accident" charge in Tolbert v. Duckworth, 262 Ga. 622, 623 (1992). There, as here, an approved pattern instruction⁽³⁾ purported to elaborate on the burden of proof in a way that was at best unnecessary, but that also tended to confuse the jury. The use of the term "accident" would create "confusion because of the difference between the legal definition of 'accident' and the commonly understood meaning of the word as an unintended act." Id., 262 Ga. at 623.⁽⁴⁾ More generally, the instruction was "unnecessary, misleading, and confusing" because it was "nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury," and that the "standard instructions on negligence, proximate cause, and burden of proof are sufficient to instruct the jury that the plaintiff may not recover when an injury occurs without the defendant's fault." Id., 262 Ga. at 623-624.

In other words, the accident instruction was objectionable because more narrowly focused instructions sufficed, because the instruction was, at best, an additional way of saying the same thing, and at worst, posed a substantial risk of misleading jurors about the correct standard. The same considerations apply to the presumption charge in this case. At best, it is a restatement of the burden of proof, but it poses the risk of being understood as some provisional assessment of the facts of the case. It should be abolished as well.

In rejecting the legal accident charge, this Court also rejected arguments made in support of that charge that are made by the defendants in this case in support of the charge at issue here. Some had attempted to justify the accident charge in order to counter "the charitable though misguided notion that misfortune is itself compensable, regardless of fault," and that the plaintiff could not be harmed "merely by having it called to the jury's attention that it is possible, at least, for the injury to have occurred notwithstanding the absence of negligence on the part of either of the parties to the lawsuit." Benson v. Hunter, 184 Ga. App. 40, 41 (1987) (Banke, J., dissenting). The defendants here attempt to support the presumption charge for much the same reasons, to counter some feared, unrelated urge of the jury to apply its own standard of professional conduct, and those arguments should be rejected as before.

Tolbert v. Duckworth is but one example of this Court's rejection of arguably elaborative, but potentially misleading, jury instructions. See Dyer v. Souther, 274 Ga. 61, 62 (2001) (rejecting the explanation of preponderance burden as a "definite tilt" of the scales of justice, though it was also a suggested pattern instruction, because it could be misunderstood as imposing a substantial burden greater than mere preponderance); Harris v. State, 273 Ga. 608, 609-10 (2) (2001) (rejecting instruction that user of deadly weapon is presumed to intend to kill); Blackmon v. State, 272 Ga. 858, 859-60 (3) (2000) (opposing charge that "witnesses are presumed to speak the truth"); Mallory v. State, 271 Ga. 150, 152 (3) (1999) (rejecting "moral and reasonable certainty" standard in criminal cases); Renner v. State, 260 Ga. 515, 518 (3,b) (1990) (abolishing jury instruction on "flight" in criminal cases); Mathis v. Watson, 259 Ga. 13, 13 (1989) (rejecting charge on "magnified or exaggerated damages"). The presumption charge in this case should receive the same treatment.

GEORGIA CASE LAW HOLDS THAT PRESUMPTIONS REGARDING NEGLIGENCE SHOULD NOT BE GIVEN IN JURY INSTRUCTIONS.

Whether the point of law in this case is categorized as a procedural presumption or a presumption of law, it should not be given in jury instructions. Contrary to a dictum in Miller v. Miller, 258 Ga. 168, 170 (1988), the general rule in Georgia is that presumptions of law vanish upon presentation of contrary evidence and may not be given in jury instructions. Only presumptions regarding matters of exceptional policy concerns or high probability have been permitted in jury instructions. All other presumptions regarding negligence come within the general rule, and this charge likewise should not be given.

A survey of Georgia cases shows that the vast majority of subjects of presumptions in Georgia vanish when opposed by contrary evidence. To start with presumptions in tort cases, the "presumption" at issue in this case is simply a particular instance of the general "presumption" that people perform their duties without negligence, yet this general presumption applies only "in the absence of affirmative proof of negligence." Stokes v. Cantrell, 238 Ga. App. 741, 745 (1999); Richardson v. Pullen, 175 Ga. App. 305, 306-07 (1985). As a result, it is improper to instruct on this "presumption" when negligence is legitimately in issue. Harris v. White, 145 Ga. App. 156, 157-58 (3) (1978). Other presumptions regarding torts and negligence likewise vanish upon presentation of contrary evidence and create error when given in jury instructions:

* The presumption that the driver of a vehicle is a servant of the owner of the vehicle, to whom negligence may be imputed. Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776, 783 (1979) (overruling prior decisions that upheld the charge on the theory that "the facts arising from the presumption, although rebutted by uncontradicted evidence, must be determined by a jury"; as a result, this presumption clearly vanishes); Lindsey v. Fitzgerald, 157 Ga. App. 124, 125 (1) (1981).

* The presumption that injury caused by the operation of a railroad resulted from the negligence of its employees. Wall v. Southern R. Co., 196 Ga. App. 483, 483-85 (1) (1990); Houston v. Georgia Northeastern R. Co., Inc., 193 Ga. App. 687, 688 (1989); Southern R. Co. v. James, 170 Ga. App. 73, 73-74 (1984); Seaboard C.L.R. Co. v. Wroblewski, 138 Ga. App. 793 (1976).

* The similar presumption of negligence from the operation of public transportation. Booker v. MARTA, 166 Ga. App. 271, 271 (1983); Gillem v. MARTA, 160 Ga. App. 393, 394 (1981); Georgia R. & P. Co. v. Shaw, 40 Ga. App. 341 (1929).

* The presumption from livestock running free that the owner was negligent. John Hewell Trucking Co., Inc. v. Brock, 239 Ga. App. 862, 863-64 (1999).

In addition to these presumptions that vanish before they could be of use to tort plaintiffs, the existence of a number of other vanishing presumptions in a broad range of cases shows, as a general rule, that presumptions vanish when contradictory evidence is introduced. Therefore, as a general rule, instructions on such presumptions should not be given.

* The presumption arising from a ceremonial marriage that a prior marriage properly terminated. Mayo v. Owen, 208 Ga. 483, 488 (1951).

* The presumption of receipt of a properly mailed letter. Menke v. First National Bank of Atlanta, 168 Ga. App. 495, 498 (1983).

* The presumption that a user of a deadly weapon intends to kill. Harris v. State, 273 Ga. 608, 609-10 (2) (2001).

* The presumption that witnesses speak the truth. Blackmon v. State, 272 Ga. 858, 859-60 (3) (2000); Noggle v. State, 256 Ga. 383, 385-86 (4) (1986) (following federal courts in stating that the presumption-of-truthfulness charge should not be given because it "can be misleading and is of little positive value"). The federal courts mentioned in Noggle objected to the charge on grounds that it diluted the defendant's presumption of innocence, shifted the burden from the prosecution, or invaded the province of the jury to determine credibility. Cupp v. Naughten, 414 U.S. 141, 145 (1973). A presumption of truthfulness directed by the judge to the jury conflicts with the proposition that the jury may believe or disbelieve all or part of the testimony of any witness, lay or expert. Johnson v. Watson, 228 Ga. App. 351, 353-54 (5) (1997).

These cases reason that a presumption is "merely a general rule of law that under some circumstances, in the absence of any evidence to the contrary, a jury is compelled to reach a certain conclusion of fact," but the presumption "is only raised by the absence of any real evidence as to the existence of the ultimate fact in question" and "give[s] way to reality when facts opposing presumptions are presented," Floyd v. Colonial Stores, Inc., 121 Ga. App. 852, 858 n.1 (1970), since all presumptions must yield to the truth. Chrison v. H & H Interiors, Inc., 232 Ga. App. 45, 48 (1998).

There are, on the other hand, a few subjects that are so highly probable, or that are so laden with public policy concerns, that Georgia recognizes a durable, evidentiary presumption that may be properly given in jury instructions. Presumptions of this sort relate to the presumption of innocence in criminal cases, Fields v. State, 221 Ga. 307, 310 (10) (1965); sanity generally and of insanity after an adjudication of insanity, Nagel v. State, 262 Ga. 888, 891 (2,a) (1993), Johnson v. Sullivan, 247 Ga. 663 (1) (1981); Strickland v. Strickland, 201 Ga. 293, 298 (2) (1946); the validity of a marriage, Fisher v. Toombs County Nursing Home, 223 Ga. App. 842, 844 (1) (1996); the presumption against death by suicide,⁽⁵⁾ Belch v. Gulf Life Ins. Co., 219 Ga. 823, 827 (1964); Templeton v. Kennesaw Life & Accid. Ins. Co., 216 Ga. 770, 773-74 (1) (1961); Continental Assur. Co. v. Rothell, 121 Ga. App. 868, 878-79 (1970); and the presumption in favor of legitimacy. Miller v. Miller, 258 Ga. 168, 170 (168). The existence of these special types of cases casts no doubt over the general rule that it is improper to charge on a presumption regarding negligence if any evidence has been introduced to the contrary. The presumption charge in this case should not have been given.

For the foregoing reasons, this amicus urges the Court to hold that it is error to instruct that there is a presumption that the medical services in dispute were performed non-negligently.

Respectfully submitted, this October ___, 2002.

/s/ CHARLES M. CORK, III

1. This amicus curiae recommends an even simpler, but complete, charge on liability in medical negligence cases: "In treating V, Dr. D had a duty to use the degree of care and skill that is ordinarily exercised by members of medical profession generally under the same or similar circumstances. If you believe from the evidence that D failed to comply with this duty and that V's suffering and death would have been prevented if D complied with this duty, you should find for P; otherwise, you should find for D." Parallel instructions could be given for each defendant, and appropriate modifications could be made. The lawyers could then argue the significance of the standard of care and the burden of proof.

2. Bibb Transit Co. v. Johnson, 107 Ga. App. 804, 805 (1) (1963).

3. "If you should find from the evidence in this case that neither plaintiff nor defendant were guilty of negligence, then any injuries or damages would be the result of an accident. The word 'accident' has a specific and distinct meaning, as it is used in connection with this case. Accident is strictly defined as an occurrence which takes place in the absence of negligence and for which [no] one would be liable." 262 Ga. at 623.

4. Some earlier decisions of the Court of Appeals recognized the potentially misleading character of an "accident" instruction and that it overemphasized the defendant's theory of the case. Benson v. Hunter, 184 Ga. App. 40, 40 (1987); Glenn McClendon Trucking Co., Inc. v. Williams, 183 Ga. App. 508, 511 (5) (1987); Chadwick v. Miller, 169 Ga. App. 338, 342 (1983).

5. The erroneous idea that presumptions should generally be given in instruction, observed in footnote 6 of Miller v. Miller, supra was based on two "presumption against suicide" cases which are the exception, not the rule, in Georgia law.