concurring and dissenting.
I concur with the majority's decision to affirm the trial court's denial of the Cul-*1044bertsons' motion to strike, but I respectfully dissent from the majority's decision to reverse the trial court's entry of summary judgment in favor of Dr. Mernitz.
The majority cites Griffith v. Jones (1991), Ind.App., 577 N.E.2d 258, trams. pending, in support of its position that Indiana has adopted the "prudent patient" standard of care in informed consent cases. However, the cases the Griffith court relied upon do not support such a standard. Rather, the cases simply set out the well-established duty of a physician to make a reasonable disclosure of material facts relevant to the patient's decision. Payne v. Marion General Hosp. (1990), Ind.App., 549 N.E.2d 1043, 1046; Revord v. Russell (1980), Ind.App., 401 N.E.2d 763, 766; Joy et al. v. Chau (1978), 177 Ind.App. 29, 39, 377 N.E.2d 670, 676-677. Moreover, although the Griffith court found otherwise, both Payne and Revord relied on the general rule that expert medical testimony is required to establish the content of reasonable disclosure unless the situation is clearly within the realm of laypersons' comprehension.1 Payne at 1050; Revord at 766. Furthermore, as the Griffith court noted, this Court has applied the "same or similar locality" standard of care in informed consent cases (see, e.g., Ellis v. Smith (1988), Ind.App., 528 N.E.2d 826, 828); therefore, the Griffith court erred in adopting the prudent patient standard of care.
Under the same or similar locality standard of care, a physician must disclose those risks a reasonable physician under similar circumstances would have disclosed. Ellis at 828. As the situation in the instant - case was clearly outside the realm of laypersons' comprehension, expert testimony was required to establish whether the disclosure was reasonable. The medical review panel found that the risk of cervical adhesion to the vagina was not a material risk of the MMK procedure and that Dr. Mernitz's failure to disclose the risk was not a breach of the applicable standard of care. The Culbertsons failed to present any expert testimony contrary to the panel's findings; therefore, the trial court's entry of summary judgment in favor of Dr. Mernitz was proper. See Ellis at 829.
Moreover, even assuming the majority was correct in applying the prudent patient standard of care, the trial court's entry of summary judgment was still proper. As the majority notes, Mrs. Culbertson stated in an affidavit that she would not have undergone the MMK procedure had she been advised of the risks of bleeding, infection, death from anesthesia, bladder perforation, and failure of the procedure.2 However, none of these risks materialized. Whether or not the risk materialized is irrelevant since the patient would not have undergone the treatment and been injured had she been informed of all material risks; however, if the unrevealed risk that should have been made known did not materialize, the omission is without legal consequence. Canterbury v. Spence (D.C.Cir.1972), 464 F.2d 772, 790. I would affirm the trial court's entry of summary judgment in favor of Dr. Mernitz.
. As the Griffith court noted, the Joy court found it unnecessary to discuss the extent of disclosure or exceptions to disclosure. Id. 177 Ind.App. at 39, 377 N.E.2d at 677.
. Dr. Mernitz stated in a deposition that he did advise Mrs. Culbertson of these risks.