TORONTO

Po Leung was ecstatic when she learned she had finally become pregnant through in vitro fertilization on March 24, 2010.

“It was one of the best days of my life. I was thrilled,” said the 44-year-old investment adviser recently. After three years of sacrifice and $60,000, her elusive goal had been reached.

The next day “was the worst day of my life,” recalled Leung.

Her common-law spouse Stuart Westcott abruptly ended their four-year relationship.

Westcott couldn’t wait to start his new life with his mistress, fertility clinic nurse Wendy Shanks, who had been treating the couple for several years while having an affair with Westcott.

Within two weeks of the “bombshell,” Leung lost her baby, her partner and the trust for the people providing her medical services.

“That’s what really hurt me the most — that my health care professionals, a nurse and a doctor, had so profoundly betrayed me while I was at my most vulnerable,” said Leung.

She launched a novel $400,000 lawsuit against Shanks, the Markham Fertility Centre and the facility’s director Dr. Colette Pyselman. The lawsuit alleges Shanks “abused her position of power, trust and influence as her medical care provider” and exploited that position to pursue a sexual relationship.

“Shanks’ conduct was intentional, malicious and done ... (knowing it would cause) Po to suffer undue psychological harm, humilitation ... (and) was done in breach of the duty and standard of care owed to Po as her nurse,” the lawsuit alleges.

“Shanks intentionally used Po’s private medical treatment and information as an excuse to repeatedly contact Stuart and foster an intimate relationship with him, without Po’s knowledge or permission,” the statement of claim says. “This invasion into Po’s private affairs was highly offensive.”

When Leung complained to the Markham clinic’s director about Shanks’ conduct, Pyselman relayed that confidential information to Shanks to “warn, protect and defend Shanks and the reputation of the clinic,” the lawsuit alleges.

Shanks’ employers, the clinic and Pyselman, “breached their fiduciary duty owed to Po” because they failed to protect her from the harm inflicted by their employee, failed to investigate and report Shanks to the College of Nurses “when they were made aware by Po of her egregious conduct.

Shanks’ employer also failed to take any disciplinary action against her,” is also among the allegations.

Shanks’ lawyer, Chris Wayland, said she will vigourously defend this lawsuit and will be filing a statement of defence in the next few weeks.

“Although we lost (the motion to dismiss the lawsuit), that decision is no guarantee of eventual success. It is a low threshold that the plaintiffs had to meet,” said Wayland, who declined to comment further and said Shanks would also decline to comment on his advice.

Pyselman’s lawyer Jaan Lilles also declined to comment and hasn’t yet filed a statement of defence.

None of the allegations have not been proven in court.

And although there is no legal action against him, when contacted Friday about the allegations containted in the statement of claim, Westcott responded, “I respectfully decline to comment.”

*****

When Westcott told Leung he was leaving her more than three years ago, the announcement knocked her to the floor, she recalled.

“What about this baby?” she asked Westcott.

“He said, ‘You can raise this baby yourself,’” Leung recounted in an interview. “I thought we wanted to do this together. I was in complete disbelief, shock ... catatonic.”

She says she begged him to stay.

“Do not do this, not right now,” Leung remembers saying. “I really wanted to give this baby the best chance. He just left.”

And Westcott took off that day for hours.

Two days later, Leung accused Shanks in a phone call, but the nurse completely denied the affair.

“Then, I confronted Westcott. He didn’t give her up right away,” said Leung. “He said she was the most special person, the kindest, most compassionate person he had ever met. He was enthralled.”

Leung said the betrayal was especially acute since Shanks was her main contact at the clinic, she said.

“We trusted everything she said. She portrayed herself as happily married with two kids, Leung recalled. “Shanks told me, ‘Both my kids are from fertility treatments. I know how hard it is. Don’t give up. My husband and I are still paying off our loans.’”

*****

Leung lost three relatives to deaths over an 18-month span in 2004 and 2005. Through those tragedies, she met funeral director Stuart Westcott.

“He can put people at ease,” Leung said. “He garners trust.”

She was so impressed that she considered changing careers. She kept in touch with him for advice and mentorship.

A year later, Westcott approached her about starting a relationship. She ultimately accepted the proposition from the charming Westcott in 2006.

“I wanted to start a family immediately, he said all the right things,” said Leung.

Westcott had moved into her home by 2007 and they became patients at the Markham clinic. Leung left a lucrative downtown job to create a Markham office near the clinic.

“She took a step backward in her career” because this was her last opportunity to conceive a child together, her lawsuit alleged.

At all times, both Pyselman and Shanks emphasized to Leung that “women who receive fertility treatments are especially fragile and must not be exposed to any stress or psychological hardship ... to be successful,” the lawsuit alleges.

“I moved to Markham to eliminate commuting stress as the key to fertility is to have less stress in your life. I thought that would give me the best shot. This was my last chance.”

*****

Lawyers for a prominent fertility clinic, its nurse and doctor lost their bid to knock out a lawsuit by a patient who allegedly lost her baby due to their misconduct, including an affair by the nurse with her husband.

The lawsuit by Po Leung — which seeks $400,000 in damages for breach of duty, negligence and infliction of mental distress — could be a landmark case since it may develop the law, including the standard of care owed by fertility clinic and medical professionals to their patients, said Leung’s lawyer Lisa Corrente of Torkin Manes.

“Does this raise a unique standard of conduct and care for fertility clinic professionals, a new field of medicine that is very personal and intimate in nature?” Corrente said in an interview after the recent court decision in her client’s favour two weeks ago.

Lawyers for nurse Wendy Shanks, Dr. Colette Pyselman and her Markham Fertility Clinic had argued several grounds for dismissing the lawsuit before trial, asserting “the claim does not exist” in current law.

They also argued that even if Leung could make a claim against Shanks, “the alleged wrongs are not sufficiently connected to her employment” that her employer and Pyselman can be held liable for Shanks’ actions.

But Justice J.R. McCarthy disagreed and dismissed the defence lawyers’ motion. He ruled that he was satisfied that “the facts when pleaded, when taken as a whole, disclose several reasonable causes of action.”

The defence also tried to strike down the claim, saying it was an “alienation of affection” lawsuit, instead of a breach of duty case.

McCarthy found that this breach falls under the duty of medical professionals to maintain a position of trust from their patients.

“I find that the fiduciary duty aspect of the claim can survive the plain and obvious test,” McCarthy ruled.