concurring specially.
I concur in the judgment in case number 70041, and I concur fully as to case number 70042.
The issue here revolves around the identification of the legal duty in this case and whether there was a breach thereof. The legal duty is the standard of care required of the defendant in the activity which caused injury. The plaintiff in this professional malpractice case presented no evidence to counter defendants’ evidence that the degree of care and skill exercised by the medical profession generally under similar conditions and like surrounding circumstances was comported with on this occasion. He testified that based on his vast experience, it is his opinion that the tube was “improperly” inserted. Obviously it was improper as a matter of fact, because the colon was perforated. But that does not mean that it was improper as a matter of law. There is no evidence that a legal duty was breached. Plaintiff produced no evidence to show that the standard of care was higher than exercised by defendants or that the treatment he was given fell below the standard asserted by defendants.
“[T]he presumption is that the medical or surgical services were performed in an ordinarily skilful manner, and the burden is on the one receiving the services to show a want of due care, skill, and diligence. [cits.] . . . [T]he proof required to overcome such presumption of care, skill, and diligence is that given by physicians or surgeons as expert witnesses [cits.],” except where actionable negligence, or the lack of negligence, clearly appears from nonexpert testimony. Shea v. Phillips, 213 Ga. 269 (2) (98 SE2d 552) (1957); Berman v. Rubin, 138 Ga. App. 849, 853 (227 SE2d 802) (1976). The idea is that the professional expert’s performance is to be judged against that of his peers. Shea, supra at 271. Thus, “except in clear and palpable cases . . . , expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice.” Berman, supra at 853. Plaintiff is not a medical professional. He cannot, and indeed he did not even attempt to, establish the profession’s parameters. Thus he cannot say that there is an issue as to whether these parameters were exceeded.