NO. 4-01-0641

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE COOK delivered the opinion of the court:

Plaintiff, Brenda Brandt, appeals the June 21, 2001,order of the Coles County circuit court granting defendant SarahBush Lincoln Health Center's motion pursuant to sections 2-615and 2-619 of the Code of Civil Procedure to dismiss plaintiff'samended complaint. 735 ILCS 5/2-615, 2-619 (West 2000). Weaffirm.

I. BACKGROUND

In December 1998, plaintiff purchased a ProteGen Sling(sling) from defendant to treat her incontinence. The sling wassurgically implanted in plaintiff at defendant's health center. In January 1999, the company that manufactured the sling, defendant Boston Scientific Corporation (Boston Scientific), issued avoluntary recall of the sling. (Boston Scientific is not partyto this appeal.) The recall stated that "upon review of medicalliterature and clinical experience with synthetic slings ***[Boston Scientific] ha[s] determined that the use of ProteGen inthe treatment of female incontinence does not produce outcomesthat are consistent with [Boston Scientific's] standard ofperformance for [its] products or customer expectations." Therecall further stated that during follow-up and care of existingProteGen patients, particular care should be given to the detection and treatment of vaginal erosion and dehiscence. (Dehiscence is the tearing apart or reopening of the surgicalwound from the implant, which could result in the dislocation ofthe sling.) Following implantation of the sling, plaintiffalleges she experienced serious medical complications, includinginflammation, pain, bleeding, infection, and erosion of thetissue of her vaginal wall. As a result of these complications,the sling was surgically removed in November 1999.

In July 2000, plaintiff filed a six-count complaintagainst defendants Sarah Bush Lincoln Health Center and BostonScientific, alleging the torts of negligence and strict liability, and alleging breach of implied warranty of merchantabilityunder the Uniform Commercial Code (UCC) (810 ILCS 5/1-101 et seq.(West 1998)). Defendant Sarah Bush Lincoln Health Center filed amotion to dismiss the three counts against it arguing, in part,that the complaint was defective due to plaintiff's failure toattach a section 2-622 physician's affidavit to the complaint. 735 ILCS 5/2-622 (West 2000). In January 2001, the trial courtgranted defendant's motion to dismiss, finding that the allegedactions of defendant were related to plaintiff's medical condition and treatment, and therefore, a physician's affidavit wasrequired. Plaintiff was given leave to file an amended complaintto include a section 2-622 physician's affidavit.

In May 2001, plaintiff filed her amended complaintalleging the same three counts as the original complaint ofnegligence, strict liability, and breach of implied warranty ofmerchantability against Boston Scientific, and one count ofbreach of implied warranty of merchantability against defendant. Plaintiff did not attach a section 2-622 physician's affidavit tothe amended complaint. Defendant filed a motion to dismiss countIV of the amended complaint. Defendant argued that plaintiff hadfailed to correct the deficiencies in accordance with the trialcourt's order in that count IV was a variation of healing artmalpractice and therefore required a section 2-622 affidavit. Defendant further argued that it was not a "merchant" withrespect to the sale of the medical sling as required for liability under the UCC, and that the interaction between the plaintiffand defendant was predominantly to obtain services while liability under the UCC only applies to the sale of goods. The trialcourt granted defendant's motion to dismiss count IV of theamended complaint for failure to meet the pleading requirementsof section 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622(West 1998)) with prejudice. This appeal followed.

II. ANALYSIS

The issues in this appeal are whether the sale of thepubovaginal sling sold by defendant to plaintiff was a sale ofgoods under article 2 of the UCC (810 ILCS 5/2-101 through 2-725(West 1998)), and whether the allegation of breach of impliedwarranty of merchantability based upon defendant's sale anddistribution of the sling involved "healing art malpractice,"thereby requiring the attachment of a section 2-622 physician'saffidavit to the amended complaint.

A. Standard of Review

Our review of the trial court's order granting defendant's motion to dismiss is de novo. Neppl v. Murphy, 316 Ill.App. 3d 581, 583-84, 736 N.E.2d 1174, 1178 (2000). We may affirmthe trial court's ruling on any basis supported by the record. Messenger v. Edgar, 157 Ill. 2d 162, 177, 623 N.E.2d 310, 317(1993).

B. Claim for Breach of Implied Warranty of
Merchantability Under the UCC

Plaintiff's amended complaint alleged one count ofbreach of implied warranty of merchantability under section 2-314of the UCC against the defendant based upon its sale and distribution of the sling. 810 ILCS 5/2-314 (West 1998). Section 2-314 of the UCC states:

"(1) Unless excluded or modified ***, awarranty that the goods shall be merchantableis implied in a contract for their sale ifthe seller is a merchant with respect togoods of that kind. ***

(2) Goods to be merchantable must be at least such as 

(a) pass without objection in the trade under the contract description; and

***

(c) are fit for the ordinary purposes for which such goods areused[.]" 810 ILCS 5/2-314(1),(2)(a), (2)(c) (West 1998).

Section 2-104 defines "merchant" to mean:

"[A] person who deals in goods of the kind orotherwise by his occupation holds himself outas having knowledge or skill peculiar to thepractices or goods involved in the transaction or to whom such knowledge or skill maybe attributed by his employment of an agentor broker or other intermediary who by hisoccupation holds himself out as having suchknowledge or skill." 810 ILCS 5/2-104 (West 1998).

Section 2-102 further provides that the UCC "applies to transactions in goods." 810 ILCS 5/2-102 (West 1998) Finally, case lawestablishes that the warranty provisions of the UCC do not applyto the rendition of services. Pitler v. Michael Reese Hospital,92 Ill. App. 3d 739, 742, 415 N.E.2d 1255, 1257 (1980).

The test for applicability of the UCC in Illinois iswhether the transaction at issue is predominantly one for thesale of goods with services incidentally involved, or one for therendition of services with the sale of goods incidentally involved. Boddie v. Litton Unit Handling Systems, 118 Ill. App. 3d520, 531, 455 N.E.2d 142, 150 (1983). If the transaction wasprimarily for services, then the UCC does not apply even if thesale of goods was part of the transaction. Pitler, 92 Ill. App.3d at 742, 415 N.E.2d at 1257. Defendant contends that in theinstant case, the sale of the sling was a necessary adjunct tothe primary function of providing medical services, and thereforethe UCC does not apply. We agree.

In general, when a person seeks medical care from ahospital, the primary purpose of the transaction is to obtain thehospital's services, not to buy medical supplies or devices. Many courts have declined to allow products liability claimsagainst hospitals based upon the sale of defective medicalequipment. See, e.g., Parker v. St. Vincent Hospital, 122 N.M.39, 41, 919 P.2d 1104, 1106 (1996), citing Hoff v. Zimmer, Inc.,746 F. Supp. 872 (W.D. Wis. 1990) (hip prosthesis); Hector v.Cedars-Sinai Medical Center, 180 Cal. App. 3d 493, 225 Cal. Rptr.595 (1986) (pacemaker); Fisher v. Sibley Memorial Hospital, 403A.2d 1130 (D.C. 1979) (blood for transfusion); Roberts v.Suburban Hospital Ass'n, 73 Md. App. 1, 532 A.2d 1081 (1987)(same); Baptista v. Saint Barnabas Medical Center, 109 N.J.Super. 217, 262 A.2d 902 (1970) (same), aff'd, 57 N.J. 167, 270A.2d 409 (1970); Goldfarb v. Teitelbaum, 149 A.D.2d 566, 540N.Y.S.2d 263 (1989) (mandibular prosthesis); Ayyash v. Henry FordHealth Systems, 210 Mich. App. 142, 533 N.W.2d 353 (1995) (Vitekimplant); Cafazzo v. Central Medical Health Services, 542 Pa.526, 668 A.2d 521 (1995) (same).

A hospital will often use and sell certain tangible items as a necessary part of providing service. However, thethrust of the transaction between patient and hospital is stillthe provision of services to treat a medical condition. Theincidental sale of the product or device that is necessary torender the medical service does not transform the transactioninto one primarily for the sale of goods.

In this case, plaintiff sought the hospital's services for treatment of a medical condition. The rendition ofservices was the primary purpose of the transaction. The sale ofthe sling, though an important part of the services, was incidental to those services. The UCC does not apply.

Plaintiff cites Garcia v. Edgewater Hospital, 244 Ill. App. 3d 894, 613 N.E.2d 1243 (1993), for support of herposition that the sale of the sling was a sale of goods under theUCC. Garcia involved a claim of breach of implied warranty ofmerchantability regarding a defective heart valve sold to apatient by the defendant hospital and used in a heart surgery. The First District found that the supplying of mitral valvesconstituted a sale, and therefore, it was not error to base thedefendant's liability on breach of implied warranty of merchantability under section 2-314 of the UCC. Garcia, 244 Ill. App. 3dat 901, 613 N.E.2d at 1249. The First District based its decision on the Illinois Supreme Court's decision in Cunningham v.MacNeal Memorial Hospital, 47 Ill. 2d 443, 451, 266 N.E.2d 897,901 (1970), which held that supplying blood for purposes oftransfusion was a sale. The legislature responded to Cunninghamby passing legislation to overrule that decision. See Pub. Act77-184, eff. July 2, 1971 (adding Ill. Rev. Stat. 1971, ch. 91,par. 182 (now 745 ILCS 40/2 (West 1998))).

While Garcia does provide support for plaintiff's argument, it is a First District decision, which we are notcompelled to follow. Nor do we find Garcia to be persuasive. Cunningham, the case on which Garcia relied, was not a UCC case,and it is therefore unclear what precedential value Cunninghamhas in a case based upon a UCC claim. It is also telling thatthe legislature acted to overrule the holding in Cunningham.While Cunningham does compel this court to recognize that thesale of the sling in this case was in fact a "sale," the existence of a sale in and of itself does not automatically implicatethe UCC. Rather, the sale must be the primary reason behind thetransaction for the UCC to apply. Pitler, 92 Ill. App. 3d at742, 415 N.E.2d at 1257. Garcia notwithstanding, we find thatthe transaction in this case was primarily for the rendition ofservices and that the UCC therefore does not apply.

C. Requirement of Section 2-622 Affidavit

Although it does not affect our ruling in this case, wenote that the trial court erred when it found plaintiff's UCCclaim constituted a claim for "healing art malpractice" asdefined in section 2-622 of the Code of Civil Procedure (735 ILCS5/2-622 (West 2000)) and that plaintiff therefore needed to filea section 2-622 affidavit. The legislature's purpose in passingsection 2-622 was to reduce the number of frivolous suits thatare filed and to eliminate such actions at an early stage, beforethe expenses of litigation have mounted. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139, 1142(1992). Section 2-622 was part of the medical malpractice reformlegislation enacted by the General Assembly in 1985 in responseto what was perceived to be a crisis in the area of medicalmalpractice. DeLuna, 147 Ill. 2d at 65, 588 N.E.2d at 1142. TheDeLuna decision solely addressed medical malpractice cases andincluded no language to expand its applicability further.

The one allegation against defendant in this case concerns the sale of a defective sling, and plaintiff in thiscase does not allege malpractice or any breach of a standard ofcare. Therefore, the complaint sounds in breach of warrantyunder the UCC, and it is unnecessary for plaintiff to file asection 2-622 affidavit.

As a final note, we will address defendant's argumentthat plaintiff must present expert medical testimony to fullyrecover direct and consequential damages, and therefore, mustfile a section 2-622 affidavit. Defendant seems to argue thatsection 2-622 applies to any case where medical testimony may berequired, whether or not malpractice is alleged, to prove medicalinjury damages. This is incorrect.

We have already found that plaintiff's claim does notinvolve "healing art malpractice," which is the trigger forapplicability of section 2-622. Therefore, any medical testimonythat may be presented in this case will not require the filing ofa section 2-622 affidavit. This is true whether the testimonyrelates to direct or consequential damages, and this is in linewith the case law that holds a section 2-622 affidavit is notrequired to present medical evidence of damages in other non-malpractice actions. See Mooney v. Graham Hospital Ass'n, 160Ill. App. 3d 376, 382, 513 N.E.2d 633, 637 (1987); Owens v. ManorHealth Care Corp., 159 Ill. App. 3d 684, 689, 512 N.E.2d 820,823-24 (1987); Gragg v. Calandra, 297 Ill. App. 3d 639, 645-46,696 N.E.2d 1282, 1287 (1998).

III. CONCLUSION

We affirm the trial court.

TURNER, J., concurs.

JUSTICE MYERSCOUGH, specially concurring in part anddissenting in part:

I respectfully concur in part and dissent in part. Iconcur with the majority that plaintiff's UCC claim did notconstitute a claim for "healing art malpractice" as defined insection 2-622 of the Code of Civil Procedure, and, therefore,plaintiff was not required to file a section 2-622 affidavit. Idissent, however, with the majority finding that hospitals areexempt from liability for the sale of defective products underthe UCC.

The majority decision to ignore Garcia, 244 Ill. App.3d 894, 613 N.E.2d 1243, a UCC case, due to its reliance onlanguage in Cunningham, 47 Ill. 2d 443, 266 N.E.2d 897, a non-UCCcase, is incorrect. While the Illinois legislature negatedCunningham by limiting the liability of hospitals for the distribution of blood, it did not eliminate Cunningham's applicabilityto the sale of other medical products intended for use in thehuman body, as specifically found by the Garcia court. Garcia,244 Ill. App. 3d at 900, 613 N.E.2d at 1248.

The facts and cause of action in Garcia mirror those inthe instant case. Garcia involved a claim for breach of impliedwarranty of merchantability regarding a defective heart valvesold to a patient by the defendant hospital and used in a heartsurgery. There, the plaintiff brought an action alleging breachof implied warranty of merchantability following the death of hiswife. The plaintiff's wife, Victoria Garcia, was admitted to thedefendant hospital for mitral valve replacement surgery. Themitral valve connects the heart's atrial and ventricular chambersand allows blood to flow between the two chambers, therebyproviding normal heart function. Garcia, 244 Ill. App. 3d at896, 613 N.E.2d at 1246. During the surgery, the diseased mitralvalve was removed and replaced with an artificial valve prosthesis. Following the surgery, Mrs. Garcia's heart was not functioning properly, and upon reopening the heart, the doctordiscovered that part of the artificial valve was floating in theheart's chamber. The defective valve was removed and replacedwith another valve. The surgery required the plaintiff's wife tobe on a cardiopulmonary bypass machine for an extended time,which resulted in her developing a disorder that prevented theblood from clotting. The plaintiff's wife lost all of her bloodand died. Garcia, 244 Ill. App. 3d at 897, 613 N.E.2d at 1246.

The defendant in Garcia argued, as did defendant in theinstant case, that it should not be liable under section 2-314 ofthe UCC for breach of implied warranty of merchantability. Thetrial court found that the hospital could be liable, and inupholding the trial court's ruling, the appellate court statedthat Cunningham makes it clear that the supplying of mitralvalves constituted a sale, and therefore, it was not error tobase the defendant's liability on breach of implied warranty ofmerchantability. While the appellate court acknowledged thestatutory change following the Cunningham decision that limitedliability of hospitals for the distribution of blood, the appellate court, citing Hill v. Jackson Park Hospital, 39 Ill. App. 3d223, 226, 349 N.E.2d 541, 544 (1976), stated that the Cunninghamdecision was controlling with respect to surgical implements,drugs, food, and other articles intended for use in the humanbody. Garcia, 244 Ill. App. 3d at 900, 613 N.E.2d at 1248. Therefore, Garcia and Cunningham are controlling here.

Moreover, the cases relied upon by the majority, Pitlerv. Michael Reese Hospital, 92 Ill. App. 3d 739, 415 N.E.2d 1255, and Boddie v. Litton Unit Handling Systems, 118 Ill. App. 3d 520,455 N.E.2d 142 (1983), are clearly distinguishable from the factsin the instant case. In Pitler, the court stated that theimplied warranty of merchantability under the UCC did not applyin that case because the transaction between the plaintiff'sparents and the defendant hospital was for the rendition ofservices (radiation treatments). In so ruling, however, thecourt noted that "[the plaintiff] does not *** mention the [UCC]anywhere in count I or elsewhere in the complaint, and [plaintiff] makes no allegations either that there was a sale of goodsor that the stated warranties were breached in any manner." (Emphasis added.) Pitler, 92 Ill. App. 3d at 742, 415 N.E.2d at1257-58.

Similarly, in Boddie, the appellate court found thatthe provision of construction services was not a sale of goodsunder the UCC. Boddie, 118 Ill. App. 3d at 531, 455 N.E.2d at150. In Boddie, the plaintiff filed a claim for negligence,strict liability, willful and wanton conduct, and breach ofwarranty against the defendant, who was the general contractorfor the construction of the postal facility. Boddie, 118 Ill.App. 3d at 522, 455 N.E.2d at 144. The court found the transaction between the defendant and plaintiff's employee, the UnitedStates Post Office, did not fall within the ambit of the UCC. The court based its ruling upon the language of the contractbetween the defendant and the United States Post Office. Further, the court noted that general construction contracts encompass the erection of buildings, the installation of utilities andservices, with extensive excavation and demolition, and therefore, the construction contract between the defendant and theUnited States Post Office was clearly not a transaction for thesale of goods. Boddie, 118 Ill. App. 3d at 531, 455 N.E.2d at150. Thus, the facts of Pitler (which does not allege UCCviolations or the sale of goods) and Boddie (a contract forconstruction services) make these decisions distinguishable fromthe instant case.

The majority opinion erroneously dismisses the applicable Illinois case law, relying instead on Pitler, Boddie, andother states' case law. The majority cites nine cases, all fromother jurisdictions, where courts dismissed products liabilityclaims against hospitals based upon the sale of defective medicalequipment. While there may be good policy reasons for creating abright-line rule that hospitals are not liable for the sale ofdefective medical products under the UCC, the legislature has notdone so--even though it could have done so when it made statutorychanges following Cunningham. As such, Cunningham and Garciashould be followed. There is no authority for exempting hospitals for the sale of defective medical products.

For these reasons, I would reverse the trial court.