A bad outcome is not negligence. A patient can suffer a serious, life-altering injury during an operation, endure a colostomy and years of further surgery, and still have no claim in law. The question is never whether something went wrong. It is whether the surgeon’s actual conduct fell below the standard of a reasonably competent specialist, and whether that conduct caused the injury. Proving both, in almost every case, requires expert medical evidence.
Reistad v La Berge, 2026 BCSC 575 is a recent and instructive illustration. The plaintiff underwent a prophylactic laparoscopic hysterectomy to reduce a very high genetic risk of cancer. During the surgery her rectum was perforated by a thermal injury. She was left with a colostomy and a long recovery, and she sued both her gynaecologist and the hospital. After an eight-day trial, the Supreme Court of British Columbia dismissed the entire claim.
The decision is worth reading for three reasons. The first is that the plaintiff led no expert evidence of her own and tried to build her case by cross-examining the defendant and the defence expert. The second is that the defence answered a serious allegation of fabrication by producing the audit trail from the electronic medical record, which showed that the consent note had been created before the complication was discovered and never altered afterward. The third is the court’s careful application of the modified objective test on informed consent, and its explanation of why a patient’s after-the-fact insistence that she would have refused surgery carries little weight.
How a British Columbia Decision Bears on Ontario Law
Reistad is a trial decision of the Supreme Court of British Columbia. It is persuasive in Ontario, not binding. That distinction matters, but here it makes little practical difference, because the principles the court applied are drawn almost entirely from binding decisions of the Supreme Court of Canada that govern Ontario in exactly the same way. The informed consent framework comes from Reibl v Hughes, [1980] 2 SCR 880 and Arndt v Smith, [1997] 2 SCR 539. The standard of care for specialists comes from Ter Neuzen v Korn, [1995] 3 SCR 674. The causation analysis rests on Snell, Clements, and Benhaim v St Germain, 2016 SCC 48.
The requirement that a malpractice plaintiff prove breach and causation through expert evidence is as firmly established in Ontario as it is in British Columbia. The British Columbia court relied on a line of Ontario authority to make exactly that point, including Branco v Sunnybrook & Women’s College Health Sciences Centre and Redman v Hospital for Sick Children. Only the British Columbia overlay on these national principles, such as the local formulations in Siever and Sheoran, is persuasive rather than binding. The bones of the decision are not. An Ontario court applying the same record would very likely reach the same result.
The Facts
The plaintiff was born in 1962 and had worked as a dental receptionist for four decades. Her medical history placed her at an unusually high risk of cancer. She had colon cancer in 2009, treated successfully with chemotherapy and surgery. In 2010 she was diagnosed with Lynch syndrome, and in 2019 she tested positive for a BRCA2 gene mutation. On the genetics evidence at trial, that combination carried a lifetime risk of uterine cancer in the range of 30 to 60 percent, together with a substantially elevated risk of ovarian and breast cancer. A number of her family members had died of cancer.
Two cancer-genetics physicians recommended prophylactic surgery: removal of the uterus and cervix together with both ovaries and fallopian tubes. Her family physician agreed. By the time she first saw the defendant gynaecologist, Dr La Berge, the plaintiff accepted that she was at very high risk and knew she would need a hysterectomy.
The plaintiff saw Dr La Berge three times. The first two appointments, in May 2020, took place by telephone during the early pandemic. At the first, Dr La Berge discussed an open abdominal approach, and the plaintiff was placed on the surgical waitlist. The material appointment was the third, an in-person visit on September 21, 2021, two days before surgery. By then Dr La Berge had trained to perform the vaginal closure laparoscopically and could offer a total laparoscopic hysterectomy and bilateral salpingo-oophorectomy. After examining the plaintiff and weighing her elevated risk of deep vein thrombosis, her elevated BMI, the fact that she had never carried a pregnancy, and her history of abdominal surgery, Dr La Berge recommended the laparoscopic approach as the safest option. The plaintiff agreed.
The surgery took place on September 23, 2021. It appeared to go well, and the plaintiff was discharged the next day. Her pain then worsened. By September 26 she had returned to the emergency department with significant pain and swelling, and on September 27 a further operation revealed that her rectum had been perforated. The operating surgeon described the injury in her operative report as an arcing-type thermal injury, long and linear. The plaintiff underwent a colostomy and further surgeries. The colostomy was reversed in May 2023.
The Allegations
Against Dr La Berge, the plaintiff advanced three allegations: that she had not been warned of the risk of bowel injury and so had not given informed consent; that Dr La Berge had breached the standard of care in performing the surgery; and, most seriously, that Dr La Berge had created false evidence about both the consent discussion and the cause of the injury.
Against the Interior Health Authority, which operated Kelowna General Hospital, the plaintiff alleged inadequate policies and procedures and a failure of quality control over the electrosurgical equipment, including a claim that the hospital had supplied a defective monopolar electrode. By closing submissions the plaintiff conceded that the evidence did not establish a defect in the instrument, and that claim fell away. What remained were allegations about the hospital’s reprocessing of reusable instruments, its failure to warn surgeons that the electrodes were reusable, and its failure to ensure the plaintiff had passed gas or stool before discharge.
Credibility, Reliability, and the Audit Trail
Like most malpractice trials, this one turned on whose account of events the court accepted. The court drew the familiar distinction between credibility, meaning honesty, and reliability, meaning accuracy. A witness can be entirely sincere and still be wrong.
The plaintiff was found to be credible but unreliable. Her recollection of all three appointments was poor. She had forgotten details recorded in her own handwritten notes. On one immaterial appointment her account flatly contradicted both Dr La Berge’s evidence and the contemporaneous chart, and the court concluded the plaintiff had simply misremembered. The court also accepted that the pain and medication surrounding her complication had likely affected her memory of the consent discussion.
Dr La Berge, by contrast, testified in a clear and consistent way, and her evidence was corroborated by her clinical records. That mattered most on the gravest allegation in the case. The plaintiff’s theory was not merely that the consent discussion had been inadequate. It was that Dr La Berge had fabricated her clinical note after the bowel injury came to light, in order to manufacture a record of a warning she had never given.
That allegation collapsed against the electronic record. During the litigation the defence obtained an audit trail from the charting software. It showed that the September 21 clinical note had been created at 11:07 in the morning on September 22, 2021, the day before the surgery and several days before the complication was discovered, and that it had never been modified after that point. The authenticity of the audit trail was never challenged, and the court accepted it. A note written before anyone knew the surgery had gone wrong could not have been written to paper over a known injury.
The audit trail is the single most practical lesson in the decision. Modern electronic medical records carry metadata that records when an entry was made and whether it was later changed. That metadata is discoverable, and it cuts both ways. It can expose a record altered after the fact. Here it did the opposite, and it defeated a fabrication theory that, without the metadata, might otherwise have come down to one person’s word against another.
The court’s treatment of usual-practice evidence reinforced the point. Busy clinicians often have no independent memory of a routine encounter and testify instead to their invariable practice, supported by their notes. Canadian courts have long accepted that evidence and can give it significant weight, particularly when it is combined with a contemporaneous record. Dr La Berge testified that it is her standard practice to warn of the risk of bowel injury when consenting a patient for this operation, that she had done so here, and that she remembered this patient because of the complication that followed. The court accepted all of it.
Informed Consent
The informed consent analysis had two parts: whether Dr La Berge disclosed the risk of bowel injury, and, if she had not, whether a reasonable patient in the plaintiff’s position would have proceeded anyway. It was conceded that bowel injury was a material risk of the surgery and that it materialized. The legal test, as the court set it out, required the plaintiff to show that she was not informed of that material risk, that a reasonable person properly informed would not have proceeded, and that the undisclosed risk caused her damage.
Was the Risk Disclosed?
The court found that it was. Dr La Berge’s clinical note recorded that the plaintiff was at increased risk of complications because of bowel adhesions from her earlier surgery, and that she was aware of the risk of intra-abdominal injury on insertion of the first instrument and of the possible need to convert to an open operation. Dr La Berge testified that she had quantified the risk of bowel injury at roughly two to three in a thousand, increased in this patient by her surgical history. The note, the audit trail, and her usual practice together satisfied the court that the warning had been given.
Two narrower points are worth drawing out, because they recur in informed consent litigation. First, where a patient has been told of a risk, the physician is not required to explain the precise mechanism by which it might occur. The plaintiff argued she should have been told specifically that the injury could be caused by the surgical use of electricity. The court rejected that. Knowing that bowel injury was a risk was enough. Second, a physician is only required to discuss reasonable alternatives, and an alternative is not reasonable simply because it exists. The plaintiff argued she should have been offered a vaginal or laparoscopically assisted vaginal hysterectomy. The evidence, including the evidence of the defence expert, was that neither was a safe option for this patient. An argument that those alternatives should have been discussed therefore failed at the threshold.
The Modified Objective Test
Even if the risk had not been disclosed, the claim would still have failed on causation. The governing test is the modified objective standard from Reibl v Hughes and Arndt v Smith: not what this plaintiff says she would have done, but what a reasonable person in her particular circumstances, properly informed, would have done. The plaintiff’s own evidence, that she would have refused the surgery despite her cancer risk, was treated as being of little value because it was given with the benefit of hindsight. Anyone who knows in advance how an operation turned out will say they would not have proceeded. That is precisely why the law asks the question objectively.
On the facts, a reasonable patient in the plaintiff’s position would have proceeded. She carried both Lynch syndrome and a BRCA2 mutation. She understood she was at very high risk and was motivated to do whatever she could to avoid cancer. Two cancer-genetics physicians and her family physician had all recommended the surgery. She had accepted she would need a hysterectomy, and she was untroubled by the other risks that were disclosed, including the risk of death from the general anaesthetic. She asked no questions. The court also had the defence expert’s evidence that essentially all of his patients with this genetic profile proceed with prophylactic surgery after a full discussion of the risks, and Dr La Berge’s evidence that no such patient of hers had ever declined.
Two facts after the surgery sealed the analysis. The plaintiff herself underwent a further operation in 2023 to reverse the colostomy, accepting the risks of that procedure. And her sister, who carries the same BRCA2 mutation and who knew about the plaintiff’s complication, went ahead with the same surgery. A risk of bowel injury would not have deterred a reasonable patient in the plaintiff’s circumstances, and on the evidence it did not deter the people closest to her who faced the same decision.
Standard of Care and the Missing Expert
The standard of care analysis is the heart of the decision, and it rests on a principle that every malpractice lawyer knows and every injured patient finds hard to accept: the fact that something went wrong is not, on its own, evidence that anyone was negligent.
A specialist is judged against the conduct of an ordinary, competent specialist in the same field, not against a standard of perfection. A recognized complication, occurring without more, does not establish a breach. The old maxim res ipsa loquitur, the thing speaks for itself, has been abandoned in Canada. A court does not infer negligence from a poor result; it weighs the evidence, and in a case that turns on the technique of a complex operation it cannot do that without expert assistance.
That is where the plaintiff’s case failed. She called no expert of her own. A plaintiff in a malpractice action must, in nearly every case, lead expert evidence to establish both the standard of care and causation, because these are matters beyond the knowledge of a judge or jury. A plaintiff cannot fill the gap with medical literature, because journal articles require an expert to interpret them. And where a plaintiff leads no supportive expert report, the court is entitled to infer that none could be obtained.
Rather than call her own expert, the plaintiff tried to extract the standard of care from two hostile sources: Dr La Berge, whom she called as an adverse witness, and Dr MacDonald, the gynaecologist retained by the defence, whom she called during her own case. Neither helped her. Dr MacDonald was the only expert to opine on the standard of care, and his evidence was entirely supportive of Dr La Berge. His report described her operative technique as detailed and in keeping with the standard approach, and confirmed that the routine intraoperative safety steps had been performed. His opinion on her care went unchallenged in cross-examination. With no competing expert evidence to weigh against it, the court accepted that opinion in full and found that Dr La Berge had met the standard of care.
Causation
Having found no breach, the court did not need to decide causation, but its observations are useful. The plaintiff led no causation evidence either. Even on the allegations that might arguably have raised a standard of care question, such as a failure to read the manufacturer’s instructions for the electrode or to test the equipment, there was no evidence that doing those things would have prevented the injury. Causation in a malpractice case is decided on a robust and common-sense application of the but-for test, but common sense is not a substitute for evidence, and this was not a case in which causation could simply be inferred.
The decision also contains a point that plaintiff and defence counsel should both note. It is not the role of a defendant physician to offer an opinion on what caused the injury. A defendant may give evidence of her factual observations, but her after-the-fact theory of causation is not expert opinion and is not properly received as such. Dr La Berge’s best guess, that the injury was caused by a failure in the insulation of the monopolar instrument, was treated with that caution.
The medical evidence on mechanism, such as it was, came from the experts, and it pointed to no one’s negligence. The defence gynaecologist explained that an indirect thermal injury can occur when current escapes through a breakdown in the insulation of the instrument, often outside the surgeon’s field of view, and that insulation breakdown is a known phenomenon in both disposable and reusable instruments. On his evidence the rate is in the order of three percent for disposable instruments and nineteen percent for reusable ones. That figure is worth pausing on, because it shows that insulation failure in reusable electrosurgical instruments is neither rare nor fanciful. He found no evidence of any gross surgical error. The hospital’s general surgery expert offered the competing view that missed bowel injuries usually reflect surgical technique rather than equipment, but his opinion assumed the very thing in dispute, namely that the equipment was sound, and he accepted that it is impossible to determine after the fact whether the instrument’s insulation or tip had failed.
The Claims Against the Hospital
The claims against the hospital failed for the same fundamental reason and on a related body of law. With the defective-instrument allegation abandoned, what remained was a challenge to the hospital’s reprocessing of reusable surgical instruments and to its policies.
A hospital is judged against the standard of a reasonable hospital, and that too is a matter requiring expert evidence. The reprocessing of insulated electrosurgical instruments, the policies governing their inspection and testing, and the question of how such instruments should be tracked are all well outside the experience of an ordinary person. The plaintiff led no expert evidence on any of it.
The hospital, by contrast, did. Its unchallenged expert reviewed its medical device reprocessing practices and concluded they met the standard expected of a British Columbia hospital. The evidence showed that reprocessing technicians complete a recognized certificate and additional training, that the hospital conducted insulation testing on cautery instruments even though the manufacturer’s instructions did not require it, and that the specific instrument set used in the plaintiff’s surgery had been inspected and tested before use, with a further visual inspection by the scrub nurse in the operating room. The court accepted that a hospital which provides reusable monopolar cautery does not, by that fact, fall below the standard of care, and noted that both expert surgeons used reusable instruments in their own practices.
Two practical realities emerged from the hospital evidence that are worth keeping in mind for any electrosurgical case. First, an instrument can pass reprocessing and inspection and still be defective, because small defects are not detectable by a scrub nurse on visual or tactile inspection in the operating room. Second, hospitals commonly track instruments at the level of the set, not the individual instrument. The set used here carried a barcode; the monopolar cautery within it did not. As a result, once the instrument went back for reprocessing it could not be traced, and there was no way to know whether it was ever found to be defective. The plaintiff argued that this inability to trace the instrument was itself negligent. The hospital’s expert disagreed, explaining that set-level tracking, and the practice of discarding a cautery if a defect is later found in reprocessing, are both normal in the field.
The plaintiff also argued, for the first time in closing submissions, that the hospital should be liable for allowing Dr La Berge to perform a procedure she was not qualified to do, and asked the court to draw an adverse inference. The argument failed on several grounds. It had not been pleaded. An adverse inference requires the party seeking it to establish a prima facie case, and there was no evidence that Dr La Berge was unqualified, no disciplinary or regulatory history, and nothing to suggest her hospital privileges were an issue. More fundamentally, a hospital is not vicariously liable for the negligence of an independent-contractor physician, and the grant of hospital privileges is not a guarantee of competence. Even a finding that Dr La Berge had fallen below the standard of care, which the court did not make, would not have created liability on the part of the hospital.
Practical Observations
For patients and prospective plaintiffs, Reistad is a hard case, and an honest one to read. A woman with a genuine and serious injury, who endured a colostomy and years of surgery, recovered nothing. The reason was not that her injury was trivial or that the court was unsympathetic, because the reasons expressly acknowledge her suffering. The reason was that a bad outcome, standing alone, is not negligence, and that proving negligence requires evidence this case did not have. A surgical complication that is a recognized risk of the procedure, and that was disclosed in advance, is not a claim simply because it happened.
For plaintiffs’ counsel, the decision is a reminder of three things. The first is that the expert is the case. A malpractice claim run without a supportive expert report on standard of care and causation is, in all but the rarest cases, a claim that cannot succeed, and attempting to build one out of the defendant and the defence expert is not a strategy. The second is that the electronic record now decides many consent disputes before trial. Counsel should obtain the charting audit trail early, because the metadata will either support a fabrication theory or destroy it, and it is far better to know which before pleading one. The third is that the modified objective test discounts the client’s own account heavily. A high-risk patient who has already accepted the need for surgery, and whose family members face and accept the same risk, is a difficult plaintiff on causation in an informed consent case, however genuine the later regret.
For defence counsel, the case confirms the durability of contemporaneous records paired with evidence of usual practice. A physician with no independent memory of an encounter can still establish what was said by combining a clear and consistent account of her invariable practice with a note made at the time, and the audit trail behind that note can answer an allegation of fabrication outright.
For Ontario readers, the result is not binding, but it is a faithful application of binding Supreme Court of Canada authority on informed consent, standard of care, and causation, and it leans on Ontario decisions to make its central point about expert evidence. An Ontario court on the same record would have little reason to decide it differently.
Decision Date: April 1, 2026
Jurisdiction: Supreme Court of British Columbia
Citation: Reistad v La Berge, 2026 BCSC 575 (CanLII)
Reistad v La Berge: Bowel Injury, Informed Consent, and the Need for Expert Evidence
The Supreme Court of British Columbia dismisses a prophylactic laparoscopic hysterectomy bowel injury claim where the plaintiff led no expert evidence. Informed consent, the modified objective test, and the indispensability of expert evidence.
A bad outcome is not negligence. A patient can suffer a serious, life-altering injury during an operation, endure a colostomy and years of further surgery, and still have no claim in law. The question is never whether something went wrong. It is whether the surgeon’s actual conduct fell below the standard of a reasonably competent specialist, and whether that conduct caused the injury. Proving both, in almost every case, requires expert medical evidence.
Reistad v La Berge, 2026 BCSC 575 is a recent and instructive illustration. The plaintiff underwent a prophylactic laparoscopic hysterectomy to reduce a very high genetic risk of cancer. During the surgery her rectum was perforated by a thermal injury. She was left with a colostomy and a long recovery, and she sued both her gynaecologist and the hospital. After an eight-day trial, the Supreme Court of British Columbia dismissed the entire claim.
The decision is worth reading for three reasons. The first is that the plaintiff led no expert evidence of her own and tried to build her case by cross-examining the defendant and the defence expert. The second is that the defence answered a serious allegation of fabrication by producing the audit trail from the electronic medical record, which showed that the consent note had been created before the complication was discovered and never altered afterward. The third is the court’s careful application of the modified objective test on informed consent, and its explanation of why a patient’s after-the-fact insistence that she would have refused surgery carries little weight.
How a British Columbia Decision Bears on Ontario Law
Reistad is a trial decision of the Supreme Court of British Columbia. It is persuasive in Ontario, not binding. That distinction matters, but here it makes little practical difference, because the principles the court applied are drawn almost entirely from binding decisions of the Supreme Court of Canada that govern Ontario in exactly the same way. The informed consent framework comes from Reibl v Hughes, [1980] 2 SCR 880 and Arndt v Smith, [1997] 2 SCR 539. The standard of care for specialists comes from Ter Neuzen v Korn, [1995] 3 SCR 674. The causation analysis rests on Snell, Clements, and Benhaim v St Germain, 2016 SCC 48.
The requirement that a malpractice plaintiff prove breach and causation through expert evidence is as firmly established in Ontario as it is in British Columbia. The British Columbia court relied on a line of Ontario authority to make exactly that point, including Branco v Sunnybrook & Women’s College Health Sciences Centre and Redman v Hospital for Sick Children. Only the British Columbia overlay on these national principles, such as the local formulations in Siever and Sheoran, is persuasive rather than binding. The bones of the decision are not. An Ontario court applying the same record would very likely reach the same result.
The Facts
The plaintiff was born in 1962 and had worked as a dental receptionist for four decades. Her medical history placed her at an unusually high risk of cancer. She had colon cancer in 2009, treated successfully with chemotherapy and surgery. In 2010 she was diagnosed with Lynch syndrome, and in 2019 she tested positive for a BRCA2 gene mutation. On the genetics evidence at trial, that combination carried a lifetime risk of uterine cancer in the range of 30 to 60 percent, together with a substantially elevated risk of ovarian and breast cancer. A number of her family members had died of cancer.
Two cancer-genetics physicians recommended prophylactic surgery: removal of the uterus and cervix together with both ovaries and fallopian tubes. Her family physician agreed. By the time she first saw the defendant gynaecologist, Dr La Berge, the plaintiff accepted that she was at very high risk and knew she would need a hysterectomy.
The plaintiff saw Dr La Berge three times. The first two appointments, in May 2020, took place by telephone during the early pandemic. At the first, Dr La Berge discussed an open abdominal approach, and the plaintiff was placed on the surgical waitlist. The material appointment was the third, an in-person visit on September 21, 2021, two days before surgery. By then Dr La Berge had trained to perform the vaginal closure laparoscopically and could offer a total laparoscopic hysterectomy and bilateral salpingo-oophorectomy. After examining the plaintiff and weighing her elevated risk of deep vein thrombosis, her elevated BMI, the fact that she had never carried a pregnancy, and her history of abdominal surgery, Dr La Berge recommended the laparoscopic approach as the safest option. The plaintiff agreed.
The surgery took place on September 23, 2021. It appeared to go well, and the plaintiff was discharged the next day. Her pain then worsened. By September 26 she had returned to the emergency department with significant pain and swelling, and on September 27 a further operation revealed that her rectum had been perforated. The operating surgeon described the injury in her operative report as an arcing-type thermal injury, long and linear. The plaintiff underwent a colostomy and further surgeries. The colostomy was reversed in May 2023.
The Allegations
Against Dr La Berge, the plaintiff advanced three allegations: that she had not been warned of the risk of bowel injury and so had not given informed consent; that Dr La Berge had breached the standard of care in performing the surgery; and, most seriously, that Dr La Berge had created false evidence about both the consent discussion and the cause of the injury.
Against the Interior Health Authority, which operated Kelowna General Hospital, the plaintiff alleged inadequate policies and procedures and a failure of quality control over the electrosurgical equipment, including a claim that the hospital had supplied a defective monopolar electrode. By closing submissions the plaintiff conceded that the evidence did not establish a defect in the instrument, and that claim fell away. What remained were allegations about the hospital’s reprocessing of reusable instruments, its failure to warn surgeons that the electrodes were reusable, and its failure to ensure the plaintiff had passed gas or stool before discharge.
Credibility, Reliability, and the Audit Trail
Like most malpractice trials, this one turned on whose account of events the court accepted. The court drew the familiar distinction between credibility, meaning honesty, and reliability, meaning accuracy. A witness can be entirely sincere and still be wrong.
The plaintiff was found to be credible but unreliable. Her recollection of all three appointments was poor. She had forgotten details recorded in her own handwritten notes. On one immaterial appointment her account flatly contradicted both Dr La Berge’s evidence and the contemporaneous chart, and the court concluded the plaintiff had simply misremembered. The court also accepted that the pain and medication surrounding her complication had likely affected her memory of the consent discussion.
Dr La Berge, by contrast, testified in a clear and consistent way, and her evidence was corroborated by her clinical records. That mattered most on the gravest allegation in the case. The plaintiff’s theory was not merely that the consent discussion had been inadequate. It was that Dr La Berge had fabricated her clinical note after the bowel injury came to light, in order to manufacture a record of a warning she had never given.
That allegation collapsed against the electronic record. During the litigation the defence obtained an audit trail from the charting software. It showed that the September 21 clinical note had been created at 11:07 in the morning on September 22, 2021, the day before the surgery and several days before the complication was discovered, and that it had never been modified after that point. The authenticity of the audit trail was never challenged, and the court accepted it. A note written before anyone knew the surgery had gone wrong could not have been written to paper over a known injury.
The audit trail is the single most practical lesson in the decision. Modern electronic medical records carry metadata that records when an entry was made and whether it was later changed. That metadata is discoverable, and it cuts both ways. It can expose a record altered after the fact. Here it did the opposite, and it defeated a fabrication theory that, without the metadata, might otherwise have come down to one person’s word against another.
The court’s treatment of usual-practice evidence reinforced the point. Busy clinicians often have no independent memory of a routine encounter and testify instead to their invariable practice, supported by their notes. Canadian courts have long accepted that evidence and can give it significant weight, particularly when it is combined with a contemporaneous record. Dr La Berge testified that it is her standard practice to warn of the risk of bowel injury when consenting a patient for this operation, that she had done so here, and that she remembered this patient because of the complication that followed. The court accepted all of it.
Informed Consent
The informed consent analysis had two parts: whether Dr La Berge disclosed the risk of bowel injury, and, if she had not, whether a reasonable patient in the plaintiff’s position would have proceeded anyway. It was conceded that bowel injury was a material risk of the surgery and that it materialized. The legal test, as the court set it out, required the plaintiff to show that she was not informed of that material risk, that a reasonable person properly informed would not have proceeded, and that the undisclosed risk caused her damage.
Was the Risk Disclosed?
The court found that it was. Dr La Berge’s clinical note recorded that the plaintiff was at increased risk of complications because of bowel adhesions from her earlier surgery, and that she was aware of the risk of intra-abdominal injury on insertion of the first instrument and of the possible need to convert to an open operation. Dr La Berge testified that she had quantified the risk of bowel injury at roughly two to three in a thousand, increased in this patient by her surgical history. The note, the audit trail, and her usual practice together satisfied the court that the warning had been given.
Two narrower points are worth drawing out, because they recur in informed consent litigation. First, where a patient has been told of a risk, the physician is not required to explain the precise mechanism by which it might occur. The plaintiff argued she should have been told specifically that the injury could be caused by the surgical use of electricity. The court rejected that. Knowing that bowel injury was a risk was enough. Second, a physician is only required to discuss reasonable alternatives, and an alternative is not reasonable simply because it exists. The plaintiff argued she should have been offered a vaginal or laparoscopically assisted vaginal hysterectomy. The evidence, including the evidence of the defence expert, was that neither was a safe option for this patient. An argument that those alternatives should have been discussed therefore failed at the threshold.
The Modified Objective Test
Even if the risk had not been disclosed, the claim would still have failed on causation. The governing test is the modified objective standard from Reibl v Hughes and Arndt v Smith: not what this plaintiff says she would have done, but what a reasonable person in her particular circumstances, properly informed, would have done. The plaintiff’s own evidence, that she would have refused the surgery despite her cancer risk, was treated as being of little value because it was given with the benefit of hindsight. Anyone who knows in advance how an operation turned out will say they would not have proceeded. That is precisely why the law asks the question objectively.
On the facts, a reasonable patient in the plaintiff’s position would have proceeded. She carried both Lynch syndrome and a BRCA2 mutation. She understood she was at very high risk and was motivated to do whatever she could to avoid cancer. Two cancer-genetics physicians and her family physician had all recommended the surgery. She had accepted she would need a hysterectomy, and she was untroubled by the other risks that were disclosed, including the risk of death from the general anaesthetic. She asked no questions. The court also had the defence expert’s evidence that essentially all of his patients with this genetic profile proceed with prophylactic surgery after a full discussion of the risks, and Dr La Berge’s evidence that no such patient of hers had ever declined.
Two facts after the surgery sealed the analysis. The plaintiff herself underwent a further operation in 2023 to reverse the colostomy, accepting the risks of that procedure. And her sister, who carries the same BRCA2 mutation and who knew about the plaintiff’s complication, went ahead with the same surgery. A risk of bowel injury would not have deterred a reasonable patient in the plaintiff’s circumstances, and on the evidence it did not deter the people closest to her who faced the same decision.
Standard of Care and the Missing Expert
The standard of care analysis is the heart of the decision, and it rests on a principle that every malpractice lawyer knows and every injured patient finds hard to accept: the fact that something went wrong is not, on its own, evidence that anyone was negligent.
A specialist is judged against the conduct of an ordinary, competent specialist in the same field, not against a standard of perfection. A recognized complication, occurring without more, does not establish a breach. The old maxim res ipsa loquitur, the thing speaks for itself, has been abandoned in Canada. A court does not infer negligence from a poor result; it weighs the evidence, and in a case that turns on the technique of a complex operation it cannot do that without expert assistance.
That is where the plaintiff’s case failed. She called no expert of her own. A plaintiff in a malpractice action must, in nearly every case, lead expert evidence to establish both the standard of care and causation, because these are matters beyond the knowledge of a judge or jury. A plaintiff cannot fill the gap with medical literature, because journal articles require an expert to interpret them. And where a plaintiff leads no supportive expert report, the court is entitled to infer that none could be obtained.
Rather than call her own expert, the plaintiff tried to extract the standard of care from two hostile sources: Dr La Berge, whom she called as an adverse witness, and Dr MacDonald, the gynaecologist retained by the defence, whom she called during her own case. Neither helped her. Dr MacDonald was the only expert to opine on the standard of care, and his evidence was entirely supportive of Dr La Berge. His report described her operative technique as detailed and in keeping with the standard approach, and confirmed that the routine intraoperative safety steps had been performed. His opinion on her care went unchallenged in cross-examination. With no competing expert evidence to weigh against it, the court accepted that opinion in full and found that Dr La Berge had met the standard of care.
Causation
Having found no breach, the court did not need to decide causation, but its observations are useful. The plaintiff led no causation evidence either. Even on the allegations that might arguably have raised a standard of care question, such as a failure to read the manufacturer’s instructions for the electrode or to test the equipment, there was no evidence that doing those things would have prevented the injury. Causation in a malpractice case is decided on a robust and common-sense application of the but-for test, but common sense is not a substitute for evidence, and this was not a case in which causation could simply be inferred.
The decision also contains a point that plaintiff and defence counsel should both note. It is not the role of a defendant physician to offer an opinion on what caused the injury. A defendant may give evidence of her factual observations, but her after-the-fact theory of causation is not expert opinion and is not properly received as such. Dr La Berge’s best guess, that the injury was caused by a failure in the insulation of the monopolar instrument, was treated with that caution.
The medical evidence on mechanism, such as it was, came from the experts, and it pointed to no one’s negligence. The defence gynaecologist explained that an indirect thermal injury can occur when current escapes through a breakdown in the insulation of the instrument, often outside the surgeon’s field of view, and that insulation breakdown is a known phenomenon in both disposable and reusable instruments. On his evidence the rate is in the order of three percent for disposable instruments and nineteen percent for reusable ones. That figure is worth pausing on, because it shows that insulation failure in reusable electrosurgical instruments is neither rare nor fanciful. He found no evidence of any gross surgical error. The hospital’s general surgery expert offered the competing view that missed bowel injuries usually reflect surgical technique rather than equipment, but his opinion assumed the very thing in dispute, namely that the equipment was sound, and he accepted that it is impossible to determine after the fact whether the instrument’s insulation or tip had failed.
The Claims Against the Hospital
The claims against the hospital failed for the same fundamental reason and on a related body of law. With the defective-instrument allegation abandoned, what remained was a challenge to the hospital’s reprocessing of reusable surgical instruments and to its policies.
A hospital is judged against the standard of a reasonable hospital, and that too is a matter requiring expert evidence. The reprocessing of insulated electrosurgical instruments, the policies governing their inspection and testing, and the question of how such instruments should be tracked are all well outside the experience of an ordinary person. The plaintiff led no expert evidence on any of it.
The hospital, by contrast, did. Its unchallenged expert reviewed its medical device reprocessing practices and concluded they met the standard expected of a British Columbia hospital. The evidence showed that reprocessing technicians complete a recognized certificate and additional training, that the hospital conducted insulation testing on cautery instruments even though the manufacturer’s instructions did not require it, and that the specific instrument set used in the plaintiff’s surgery had been inspected and tested before use, with a further visual inspection by the scrub nurse in the operating room. The court accepted that a hospital which provides reusable monopolar cautery does not, by that fact, fall below the standard of care, and noted that both expert surgeons used reusable instruments in their own practices.
Two practical realities emerged from the hospital evidence that are worth keeping in mind for any electrosurgical case. First, an instrument can pass reprocessing and inspection and still be defective, because small defects are not detectable by a scrub nurse on visual or tactile inspection in the operating room. Second, hospitals commonly track instruments at the level of the set, not the individual instrument. The set used here carried a barcode; the monopolar cautery within it did not. As a result, once the instrument went back for reprocessing it could not be traced, and there was no way to know whether it was ever found to be defective. The plaintiff argued that this inability to trace the instrument was itself negligent. The hospital’s expert disagreed, explaining that set-level tracking, and the practice of discarding a cautery if a defect is later found in reprocessing, are both normal in the field.
The plaintiff also argued, for the first time in closing submissions, that the hospital should be liable for allowing Dr La Berge to perform a procedure she was not qualified to do, and asked the court to draw an adverse inference. The argument failed on several grounds. It had not been pleaded. An adverse inference requires the party seeking it to establish a prima facie case, and there was no evidence that Dr La Berge was unqualified, no disciplinary or regulatory history, and nothing to suggest her hospital privileges were an issue. More fundamentally, a hospital is not vicariously liable for the negligence of an independent-contractor physician, and the grant of hospital privileges is not a guarantee of competence. Even a finding that Dr La Berge had fallen below the standard of care, which the court did not make, would not have created liability on the part of the hospital.
Practical Observations
For patients and prospective plaintiffs, Reistad is a hard case, and an honest one to read. A woman with a genuine and serious injury, who endured a colostomy and years of surgery, recovered nothing. The reason was not that her injury was trivial or that the court was unsympathetic, because the reasons expressly acknowledge her suffering. The reason was that a bad outcome, standing alone, is not negligence, and that proving negligence requires evidence this case did not have. A surgical complication that is a recognized risk of the procedure, and that was disclosed in advance, is not a claim simply because it happened.
For plaintiffs’ counsel, the decision is a reminder of three things. The first is that the expert is the case. A malpractice claim run without a supportive expert report on standard of care and causation is, in all but the rarest cases, a claim that cannot succeed, and attempting to build one out of the defendant and the defence expert is not a strategy. The second is that the electronic record now decides many consent disputes before trial. Counsel should obtain the charting audit trail early, because the metadata will either support a fabrication theory or destroy it, and it is far better to know which before pleading one. The third is that the modified objective test discounts the client’s own account heavily. A high-risk patient who has already accepted the need for surgery, and whose family members face and accept the same risk, is a difficult plaintiff on causation in an informed consent case, however genuine the later regret.
For defence counsel, the case confirms the durability of contemporaneous records paired with evidence of usual practice. A physician with no independent memory of an encounter can still establish what was said by combining a clear and consistent account of her invariable practice with a note made at the time, and the audit trail behind that note can answer an allegation of fabrication outright.
For Ontario readers, the result is not binding, but it is a faithful application of binding Supreme Court of Canada authority on informed consent, standard of care, and causation, and it leans on Ontario decisions to make its central point about expert evidence. An Ontario court on the same record would have little reason to decide it differently.
Decision Date: April 1, 2026
Jurisdiction: Supreme Court of British Columbia
Citation: Reistad v La Berge, 2026 BCSC 575 (CanLII)
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
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