Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff Brenda Reistad alleged that Dr. La Berge cauterized and perforated her rectum during a total laparoscopic hysterectomy, resulting in a thermal arcing injury discovered days after surgery.

• Informed consent was a central dispute, with the plaintiff claiming she was never warned of bowel injury risk, while Dr. La Berge's contemporaneous clinical notes and audit trail confirmed the risk was discussed pre-operatively.

• Credibility assessments favored Dr. La Berge, who testified in a clear and consistent manner, whereas the plaintiff was found credible but unreliable due to poor recollection of her appointments.

• No expert evidence was adduced by the plaintiff to establish that either Dr. La Berge or Interior Health Authority breached the applicable standard of care, which is generally required in medical negligence claims.

• The sole expert opinion on the surgeon's standard of care, from Dr. MacDonald, was wholly supportive of Dr. La Berge's conduct during the surgery and her informed consent discussion.

• IHA's Medical Device Reprocessing practices were found to meet the standard of care based on unchallenged expert evidence, and the monopolar cautery instrument used could not be retrospectively traced or tested for defects.

Background and the plaintiff's medical history

Brenda Reistad, born in 1962, is a dental receptionist who has been married for 34 years with no children. In 2009, she was diagnosed with colon cancer and underwent chemotherapy and a primary reanastomosis surgery without complications. The following year, she was diagnosed with Lynch Syndrome, a hereditary condition that dramatically increases the lifetime risk of colon cancer (80%), uterine cancer (30–60%), and ovarian cancer (9–12%). In 2019, she tested positive for the BRCA2 gene mutation, which further elevated her risk of breast cancer (over 60% lifetime risk) and ovarian cancer (13–29% lifetime risk). Several of her family members had died from various cancers, making her genetic profile particularly alarming. Physicians at the BC Cancer Agency's Hereditary Cancer Program recommended that the plaintiff undergo a prophylactic hysterectomy and bilateral salpingo-oophorectomy to substantially reduce her cancer risk. Her family physician, Dr. Armstrong, referred her to Dr. Shelley La Berge, an obstetrician and gynecologist licensed in British Columbia since 2000, with the referral letter noting the plaintiff "would like to have a total hysterectomy after her genetics consult."

Initial consultations with Dr. La Berge

The plaintiff's first appointment with Dr. La Berge took place by telephone on May 14, 2020, during the COVID-19 pandemic. Dr. La Berge took the plaintiff's medical history, discussed the option of a total abdominal hysterectomy and bilateral salpingo-oophorectomy (TAH), and reviewed associated risks including bleeding, infection, deep vein thrombosis, and ureteric or bladder injury. The plaintiff took handwritten notes during the call that closely mirrored Dr. La Berge's clinical record. Notably, the plaintiff confirmed at trial that she was not concerned about the risks discussed and viewed hysterectomies as routine procedures. A follow-up telephone appointment on May 21, 2020, addressed the plaintiff's blood work and oral contraceptive use. The plan remained for the plaintiff to return for an in-person assessment before surgery.

The September 21, 2021 appointment and change in surgical approach

Between May 2020 and September 2021, Dr. La Berge completed training to suture the vaginal vault closed laparoscopically, enabling her to offer patients a total laparoscopic hysterectomy (TLH) rather than the open abdominal approach. On September 21, 2021, two days before the scheduled surgery, the plaintiff attended an in-person appointment with Dr. La Berge. After conducting a physical examination and reviewing the plaintiff's history — including her elevated BMI, use of oral contraceptives increasing DVT risk, and prior abdominal surgery — Dr. La Berge recommended the laparoscopic approach as the safest option for the plaintiff. Dr. La Berge testified that she followed her usual practice in consenting the plaintiff, advising her of risks including bowel injury at a rate of approximately 2–3 in 1,000, with an increased risk due to the plaintiff's prior surgery and possibility of adhesions. Dr. La Berge's clinical note, confirmed by an audit trail as having been created at 11:07 a.m. on September 22, 2021, documented the risk discussion. The plaintiff consented to the TLH without asking any questions.

The surgery and discovery of bowel injury

On September 23, 2021, Dr. La Berge performed the TLH at Kelowna General Hospital, assisted by Dr. Catt and nursing staff. The surgery was completed without any observed complications, and a general surveillance at the end of the procedure did not reveal direct injury to the bowel. The plaintiff was discharged the following day in satisfactory condition. However, by September 25, 2021, the plaintiff's pain worsened, and on September 26, 2021, she presented to the emergency department with increased abdominal pain, distention, and facial and neck swelling. Investigations on September 27, 2021, including a CT scan, revealed a bowel perforation. Dr. Wilson, the on-call surgeon, performed further surgery and described the injury as "an arcing-type of thermal injury as it was quite long and linear." The plaintiff subsequently underwent a colostomy and additional surgeries to address the complication.

The informed consent dispute

A central issue at trial was whether Dr. La Berge had advised the plaintiff of the risk of bowel injury before surgery. Dr. La Berge testified that it was her standard practice to disclose this risk and that she specifically did so during the September 21, 2021, appointment. Her contemporaneous clinical note, verified by an audit trail as pre-dating the surgery, documented the bowel injury risk and the plaintiff's awareness of it. The plaintiff was adamant that she was not told about bowel injury risk and claimed she would have refused surgery had she known. The Court found it more likely than not that Dr. La Berge told the plaintiff that a risk of the surgery was bowel injury, noting that the plaintiff could not recall the specific risks discussed and may not have been fully engaged during the consent discussion. Even assuming Dr. La Berge had not disclosed the risk, the Court applied the modified objective test from Reibl v. Hughes and Arndt v. Smith and concluded that a reasonable person in the plaintiff's circumstances — facing significant hereditary cancer risk, with multiple physician recommendations favoring surgery, and having accepted all other surgical risks without concern — would still have proceeded with the surgery.

Standard of care and expert evidence

The plaintiff alleged that Dr. La Berge breached the standard of care in performing the surgery through various failures, including improper use of laparoscopic instruments, failure to visualize the rectum, and failure to read the manufacturer's instructions for the monopolar electrode. However, the plaintiff did not adduce any expert evidence to support these allegations. The only expert opinion on the surgeon's standard of care came from Dr. MacDonald, the defendants' expert witness who was called to testify by the plaintiff during her case. Dr. MacDonald, an experienced and practising obstetrician gynecologist, concluded that the step-by-step procedure described in Dr. La Berge's operative report was "detailed and in keeping with the standard techniques used for this surgery." The Court emphasized that a known complication occurring during a procedure is not evidence in and of itself from which the Court can infer a breach of the standard of care, and that physicians must not be held to a standard of perfection.

Claims against Interior Health Authority

The plaintiff also alleged that Interior Health Authority (IHA), operating Kelowna General Hospital, was negligent in its policies and procedures governing surgical equipment, particularly the reprocessing and quality control of monopolar cautery instruments. The evidence showed that the Hospital's Medical Device Reprocessing (MDR) department followed Canadian Standards Association standards, conducted insulation testing on all cautery instruments — exceeding manufacturer requirements — and employed certified technicians. The scrub nurse also performed visual and tactile inspections before surgery. The plaintiff conceded in closing submissions that the evidence did not show on a balance of probabilities that her injuries were caused by a defect in the laparoscopic electrodes. Expert evidence from Mr. Csapo confirmed that IHA's reprocessing policies met the standard of care expected of a hospital in British Columbia. Regarding the inability to trace the specific monopolar cautery used in the plaintiff's surgery, the Court accepted expert evidence that it was common practice for healthcare facilities not to individually barcode and track monopolar cautery devices. No adverse inference was drawn regarding Dr. La Berge's hospital privileges, as the issue was not pleaded and no evidence supported it.

The ruling and outcome

Madam Justice Wilkinson dismissed the plaintiff's claim in its entirety on April 1, 2026. The Court found that Dr. La Berge appropriately advised the plaintiff of surgical risks, met the standard of care in performing the TLH, and that IHA met its standard of care in medical device reprocessing. Both defendants successfully defended the action, with the Court acknowledging the plaintiff's prolonged suffering but concluding she had not met her legal burden to prove her claims in negligence. No damages were awarded, as the Court did not address the matter of damages given its findings. The defendants were noted as normally being entitled to their costs, with the option to arrange a costs hearing within 30 days if the parties could not agree.