{ "id": 1472400, "name": "BRENDA BRANDT, Plaintiff-Appellant, v. SARAH BUSH LINCOLN HEALTH CENTER, Defendant-Appellee (Boston Scientific Corporation, Defendant)", "name_abbreviation": "Brandt v. Sarah Bush Lincoln Health Center", "decision_date": "2002-04-23", "docket_number": "No. 4\u201401\u20140641", "first_page": "348", "last_page": "357", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 348" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "696 N.E.2d 1282", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1287" } ], "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910271 ], "year": 1998, "pin_cites": [ { "page": "645-46" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0639-01" ] }, { "cite": "512 N.E.2d 820", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "823-24" } ], "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 684", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3610539 ], "year": 1987, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0684-01" ] }, { "cite": "513 N.E.2d 633", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 376", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650196 ], "year": 1987, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0376-01" ] }, { "cite": "588 N.E.2d 1139", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "1142" }, { "page": "1142" } ], "opinion_index": 0 }, { "cite": "147 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277960 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "65" }, { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0057-01" ] }, { "cite": "266 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "47 Ill. 2d 443", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905150 ], "year": 1970, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0443-01" ] }, { "cite": "613 N.E.2d 1243", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "1249" } ], "opinion_index": 0 }, { "cite": "244 Ill. App. 3d 894", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5099683 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "901" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0894-01" ] }, { "cite": "668 A.2d 521", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 459234, 7865565 ], "year": 1995, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/pa/542/0526-01", "/a2d/668/0521-01" ] }, { "cite": "533 N.W.2d 353", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1995, "pin_cites": [ { "parenthetical": "Vitek implant" } ], "opinion_index": 0 }, { "cite": "210 Mich. App. 142", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 1876140 ], "year": 1995, "pin_cites": [ { "parenthetical": "Vitek implant" } ], "opinion_index": 0, "case_paths": [ "/mich-app/210/0142-01" ] }, { "cite": "540 N.Y.S.2d 263", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1989, "pin_cites": [ { "parenthetical": "mandibular prosthesis" } ], "opinion_index": 0 }, { "cite": "149 A.D.2d 566", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3579541, 3590063 ], "year": 1989, "pin_cites": [ { "parenthetical": "mandibular prosthesis" } ], "opinion_index": 0, "case_paths": [ "/ad2d/149/0566-01", "/ad2d/149/0566-02" ] }, { "cite": "270 A.2d 409", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1970, "opinion_index": 0 }, { "cite": "57 N.J. 167", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1940836 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nj/57/0167-01" ] }, { "cite": "262 A.2d 902", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1970, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "109 N.J. Super. 217", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 521280 ], "year": 1970, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/nj-super/109/0217-01" ] }, { "cite": "73 Md. App. 1", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 4442839 ], "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "same" }, { "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/md-app/73/0001-01" ] }, { "cite": "403 A.2d 1130", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8042090 ], "year": 1979, "pin_cites": [ { "parenthetical": "blood for transfusion" } ], "opinion_index": 0, "case_paths": [ "/a2d/403/1130-01" ] }, { "cite": "225 Cal. Rptr. 595", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1986, "pin_cites": [ { "parenthetical": "pacemaker" } ], "opinion_index": 0 }, { "cite": "180 Cal. App. 3d 493", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2194839 ], "year": 1986, "pin_cites": [ { "parenthetical": "pacemaker" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/180/0493-01" ] }, { "cite": "746 F. Supp. 872", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7386427 ], "year": 1990, "pin_cites": [ { "parenthetical": "hip prosthesis" } ], "opinion_index": 0, "case_paths": [ "/f-supp/746/0872-01" ] }, { "cite": "122 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322304 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "41" }, { "page": "1106" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0039-01" ] }, { "cite": "455 N.E.2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "150" } ], "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 520", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5660622 ], "year": 1983, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0520-01" ] }, { "cite": "415 N.E.2d 1255", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "1257" }, { "page": "1257" }, { "page": "1257" } ], "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5535917 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "742" }, { "page": "742" }, { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0739-01" ] }, { "cite": "623 N.E.2d 310", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "317" } ], "opinion_index": 0 }, { "cite": "157 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778585 ], "year": 1993, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0162-01" ] }, { "cite": "736 N.E.2d 1174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1178" } ], "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096600 ], "year": 2000, "pin_cites": [ { "page": "583-84" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0581-01" ] }, { "cite": "349 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "544" } ], "opinion_index": 1 }, { "cite": "39 Ill. App. 3d 223", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379458 ], "year": 1976, "pin_cites": [ { "page": "226" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/39/0223-01" ] }, { "cite": "266 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 1 }, { "cite": "47 Ill. 2d 443", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905150 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/ill-2d/47/0443-01" ] }, { "cite": "613 N.E.2d 1243", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "1248" }, { "page": "1246" }, { "page": "1246" }, { "page": "1248" } ], "opinion_index": 1 }, { "cite": "244 Ill. App. 3d 894", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5099683 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "900" }, { "page": "896" }, { "page": "897" }, { "page": "900" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/244/0894-01" ] }, { "cite": "455 N.E.2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "150" }, { "page": "144" }, { "page": "150" } ], "opinion_index": 1 }, { "cite": "118 Ill. App. 3d 520", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5660622 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "531" }, { "page": "522" }, { "page": "531" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/118/0520-01" ] }, { "cite": "415 N.E.2d 1255", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "1257-58" } ], "opinion_index": 1 }, { "cite": "92 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5535917 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "742" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/92/0739-01" ] } ], "analysis": { "cardinality": 909, "char_count": 20456, "ocr_confidence": 0.782, "pagerank": { "raw": 5.676156733228159e-08, "percentile": 0.3532549581075962 }, "sha256": "dd3408338c8459c4768f67e3e30875bd40e6761b82ca9dc5b0de5c986727602b", "simhash": "1:bad85cc4ad11bdbe", "word_count": 3351 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BRENDA BRANDT, Plaintiff-Appellant, v. SARAH BUSH LINCOLN HEALTH CENTER, Defendant-Appellee (Boston Scientific Corporation, Defendant)." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nPlaintiff, Brenda Brandt, appeals the June 21, 2001, order of the Coles County circuit court granting defendant Sarah Bush Lincoln Health Center\u2019s motion pursuant to sections 2 \u2014 615 and 2 \u2014 619 of the Code of Civil Procedure to dismiss plaintiffs amended complaint. 735 ILCS 5/2\u2014615, 2\u2014619 (West 2000). We affirm.\nI. BACKGROUND\nIn December 1998, plaintiff purchased a ProteGen Sling (sling) from defendant to treat her incontinence. The sling was surgically implanted in plaintiff at defendant\u2019s health center. In January 1999, the company that manufactured the sling, defendant Boston Scientific Corporation (Boston Scientific), issued a voluntary recall of the sling. (Boston Scientific is not party to this appeal.) The recall stated that \u201cupon review of medical literature and clinical experience with synthetic slings *** [Boston Scientific] ha[s] determined that the use of ProteGen in the treatment of female incontinence does not produce outcomes that are consistent with [Boston Scientific\u2019s] standard of performance for [its] products or customer expectations.\u201d The recall further stated that during follow-up and care of existing ProteGen 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 surgical wound from the implant, which could result in the dislocation of the sling.) Following implantation of the sling, plaintiff alleges she experienced serious medical complications, including inflammation, pain, bleeding, infection, and erosion of the tissue of her vaginal wall. As a result of these complications, the sling was surgically removed in November 1999.\nIn July 2000, plaintiff filed a six-count complaint against defendants Sarah Bush Lincoln Health Center and Boston Scientific, alleging the torts of negligence and strict liability, and alleging breach of implied warranty of merchantability under the Uniform Commercial Code (UCC) (810 ILCS 5/1\u2014101 et seq. (West 1998)). Defendant Sarah Bush Lincoln Health Center filed a motion to dismiss the three counts against it arguing, in part, that the complaint was defective due to plaintiffs failure to attach a section 2 \u2014 622 physician\u2019s affidavit to the complaint. 735 ILCS 5/2\u2014622 (West 2000). In January 2001, the trial court granted defendant\u2019s motion to dismiss, finding that the alleged actions of defendant were related to plaintiffs medical condition and treatment, and therefore, a physician\u2019s affidavit was required. Plaintiff was given leave to file an amended complaint to include a section 2 \u2014 622 physician\u2019s affidavit.\nIn May 2001, plaintiff filed her amended complaint alleging the same three counts as the original complaint of negligence, strict liability, and breach of implied warranty of merchantability against Boston Scientific, and one count of breach of implied warranty of merchantability against defendant. Plaintiff did not attach a section 2 \u2014 622 physician\u2019s affidavit to the amended complaint. Defendant filed a motion to dismiss count IV of the amended complaint. Defendant argued that plaintiff had failed to correct the deficiencies in accordance with the trial court\u2019s order in that count IV was a variation of healing art malpractice and therefore required a section 2 \u2014 622 affidavit. Defendant further argued that it was not a \u201cmerchant\u201d with respect to the sale of the medical sling as required for liability under the UCC, and that the interaction between the plaintiff and defendant was predominantly to obtain services while liability under the UCC only applies to the sale of goods. The trial court granted defendant\u2019s motion to dismiss count IV of the amended complaint for failure to meet the pleading requirements of section 2 \u2014 622 of the Code of Civil Procedure (735 ILCS 5/2\u2014622 (West 1998)) with prejudice. This appeal followed.\nII. ANALYSIS\nThe issues in this appeal are whether the sale of the pubovaginal sling sold by defendant to plaintiff was a sale of goods under article 2 of the UCC (810 ILCS 5/2\u2014101 through 2\u2014725 (West 1998)), and whether the allegation of breach of implied warranty of merchantability based upon defendant\u2019s sale and distribution of the sling involved \u201chealing art malpractice,\u201d thereby requiring the attachment of a section 2 \u2014 622 physician\u2019s affidavit to the amended complaint.\nA. Standard of Review\nOur review of the trial court\u2019s order granting defendant\u2019s motion to dismiss is de nova. Neppl v. Murphy, 316 Ill. App. 3d 581, 583-84, 736 N.E.2d 1174, 1178 (2000). We may affirm the trial court\u2019s ruling on any basis supported by the record. Messenger v. Edgar, 157 Ill. 2d 162, 177, 623 N.E.2d 310, 317 (1993).\nB. Claim for Breach of Implied Warranty of Merchantability Under the UCC\nPlaintiffs amended complaint alleged one count of breach of implied warranty of merchantability under section 2 \u2014 314 of the UCC against the defendant based upon its sale and distribution of the sling. 810 ILCS 5/2\u2014314 (West 1998). Section 2\u2014314 of the UCC states:\n\u201c(1) Unless excluded or modified ***, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. ***\n(2) Goods to be merchantable must be at least such as\n(a) pass without objection in the trade under the contract description; and >;< >;< *\n(c) are fit for the ordinary purposes for which such goods are used[.]\u201d 810 ILCS 5/2\u2014314(1), (2)(a), (2)(c) (West 1998).\nSection 2 \u2014 104 defines \u201cmerchant\u201d to mean:\n\u201c[A] person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.\u201d 810 ILCS 5/2\u2014104 (West 1998).\nSection 2 \u2014 102 further provides that the UCC \u201capplies to transactions in goods.\u201d 810 ILCS 5/2\u2014102 (West 1998). Finally, case law establishes that the warranty provisions of the UCC do not apply to the rendition of services. Pitler v. Michael Reese Hospital, 92 Ill. App. 3d 739, 742, 415 N.E.2d 1255, 1257 (1980).\nThe test for applicability of the UCC in Illinois is whether the transaction at issue is predominantly one for the sale of goods with services incidentally involved, or one for the rendition of services with the sale of goods incidentally involved. Boddie v. Litton Unit Handling Systems, 118 Ill. App. 3d 520, 531, 455 N.E.2d 142, 150 (1983). If the transaction was primarily for services, then the UCC does not apply even if the sale of goods was part of the transaction. Pitler, 92 Ill. App. 3d at 742, 415 N.E.2d at 1257. Defendant contends that in the instant case, the sale of the sling was a necessary adjunct to the primary function of providing medical services, and therefore the UCC does not apply. We agree.\nIn general, when a person seeks medical care from a hospital, the primary purpose of the transaction is to obtain the hospital\u2019s services, not to buy medical supplies or devices. Many courts have declined to allow products liability claims against hospitals based upon the sale of defective medical equipment. 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 (WD. 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, 403 A.2d 1130 (D.C. 1979) (blood for transfusion); Roberts v. Suburban Hospital Ass\u2019n, 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\u2019d, 57 N.J. 167, 270 A.2d 409 (1970); Goldfarb v. Teitelbaum, 149 A.D.2d 566, 540 N.Y.S.2d 263 (1989) (mandibular prosthesis); Ayyash v. Henry Ford Health Systems, 210 Mich. App. 142, 533 N.W.2d 353 (1995) (Vitek implant); Cafazzo v. Central Medical Health Services, 542 Fa. 526, 668 A.2d 521 (1995) (same).\nA hospital will often use and sell certain tangible items as a necessary part of providing service. However, the thrust of the transaction between patient and hospital is still the provision of services to treat a medical condition. The incidental sale of the product or device that is necessary to render the medical service does not transform the transaction into one primarily for the sale of goods.\nIn this case, plaintiff sought the hospital\u2019s services for treatment of a medical condition. The rendition of services was the primary purpose of the transaction. The sale of the sling, though an important part of the services, was incidental to those services. The UCC does not apply.\nPlaintiff cites Garcia v. Edgewater Hospital, 244 Ill. App. 3d 894, 613 N.E.2d 1243 (1993), for support of her position that the sale of the sling was a sale of goods under the UCC. Garcia involved a claim of breach of implied warranty of merchantability regarding a defective heart valve sold to a patient by the defendant hospital and used in a heart surgery. The First District found that the supplying of mitral valves constituted a sale, and therefore, it was not error to base the defendant\u2019s liability on breach of implied warranty of merchantability under section 2 \u2014 314 of the UCC. Garcia, 244 Ill. App. 3d at 901, 613 N.E.2d at 1249. The First District based its decision on the Illinois Supreme Court\u2019s 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 of transfusion was a sale. The legislature responded to Cunningham by passing legislation to overrule that decision. See Pub. Act 77\u2014184, eff. July 2, 1971 (adding Ill. Rev. Stat. 1971, ch. 91, par. 182 (now 745 ILCS 40/2 (West 1998))).\nWhile Garcia does provide support for plaintiffs argument, it is a First District decision, which we are not compelled 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 Cunningham has in a case based upon a UCC claim. It is also telling that the legislature acted to overrule the holding in Cunningham. While Cunningham does compel this court to recognize that the sale of the sling in this case was in fact a \u201csale,\u201d the existence of a sale in and of itself does not automatically implicate the UCC. Rather, the sale must be the primary reason behind the transaction for the UCC to apply. Pitler, 92 Ill. App. 3d at 742, 415 N.E.2d at 1257. Garcia notwithstanding, we find that the transaction in this case was primarily for the rendition of services and that the UCC therefore does not apply.\nC. Requirement of Section 2 \u2014 622 Affidavit\nAlthough it does not affect our ruling in this case, we note that the trial court erred when it found plaintiffs UCC claim constituted a claim for \u201chealing art malpractice\u201d as defined in section 2 \u2014 622 of the Code of Civil Procedure (735 ILCS 5/2\u2014622 (West 2000)) and that plaintiff therefore needed to file a section 2 \u2014 622 affidavit. The legislature\u2019s purpose in passing section 2 \u2014 622 was to reduce the number of frivolous suits that are filed and to eliminate such actions at an early stage, before the expenses of litigation have mounted. DeLuna v. St. Elizabeth\u2019s Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139, 1142 (1992). Section 2 \u2014 622 was part of the medical malpractice reform legislation enacted by the General Assembly in 1985 in response to what was perceived to be a crisis in the area of medical malpractice. DeLuna, 147 Ill. 2d at 65, 588 N.E.2d at 1142. The DeLuna decision solely addressed medical malpractice cases and included no language to expand its applicability further.\nThe one allegation against defendant in this case concerns the sale of a defective sling, and plaintiff in this case does not allege malpractice or any breach of a standard of care. Therefore, the complaint sounds in breach of warranty under the UCC, and it is unnecessary for plaintiff to file a section 2 \u2014 622 affidavit.\nAs a final note, we will address defendant\u2019s argument that plaintiff must present expert medical testimony to fully recover direct and consequential damages and, therefore, must file a section 2 \u2014 622 affidavit. Defendant seems to argue that section 2 \u2014 622 applies to any case where medical testimony may be required, whether or not malpractice is alleged, to prove medical injury damages. This is incorrect.\nWe have already found that plaintiffs claim does not involve \u201chealing art malpractice,\u201d which is the trigger for applicability of section 2 \u2014 622. Therefore, any medical testimony that may be presented in this case will not require the filing of a section 2 \u2014 622 affidavit. This is true whether the testimony relates to direct or consequential damages, and this is in line with the case law that holds a section 2 \u2014 622 affidavit is not required to present medical evidence of damages in other non-malpractice actions. See Mooney v. Graham Hospital Ass\u2019n, 160 Ill. App. 3d 376, 382, 513 N.E.2d 633, 637 (1987); Owens v. Manor Health 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).\nIII. CONCLUSION\nWe affirm the trial court.\nTURNER, J., concurs.", "type": "majority", "author": "JUSTICE COOK" }, { "text": "JUSTICE MYERSCOUGH,\nspecially concurring in part and dissenting in part:\nI respectfully concur in part and dissent in part. I concur with the majority that plaintiff\u2019s UCC claim did not constitute a claim for \u201chealing art malpractice\u201d as defined in section 2 \u2014 622 of the Code of Civil Procedure, and, therefore, plaintiff was not required to file a section 2 \u2014 622 affidavit, I dissent, however, with the majority finding that hospitals are exempt from liability for the sale of defective products under the UCC.\nThe majority decision to ignore Garcia, 244 Ill. App. 3d 894, 613 N.E.2d 1243, a UCC case, due to its rebanee on language in Cunningham, 47 Ill. 2d 443, 266 N.E.2d 897, a non-UCC case, is incorrect. While the Illinois legislature negated Cunningham by bmiting the liability of hospitals for the distribution of blood, it did not eliminate Cunningham\u2019s applicability to the sale of other medical products intended for use in the human body, as specifically found by the Garcia court. Garcia, 244 Ill. App. 3d at 900, 613 N.E.2d at 1248.\nThe facts and cause of action in Garcia mirror those in the instant case. Garcia involved a claim for breach of implied warranty of merchantability regarding a defective heart valve sold to a patient by the defendant hospital and used in a heart surgery. There, the plaintiff brought an action alleging breach of implied warranty of merchantability following the death of his wife. The plaintiffs wife, Victoria Garcia, was admitted to the defendant hospital for mitral valve replacement surgery. The mitral valve connects the heart\u2019s atrial and ventricular chambers and allows blood to flow between the two chambers, thereby providing normal heart function. Garcia, 244 Ill. App. 3d at 896, 613 N.E.2d at 1246. During the surgery, the diseased mitral valve was removed and replaced with an artificial valve prosthesis. Following the surgery, Mrs. Garcia\u2019s heart was not functioning properly, and upon reopening the heart, the doctor discovered that part of the artificial valve was floating in the heart\u2019s chamber. The defective valve was removed and replaced with another valve. The surgery required the plaintiffs wife to be on a cardiopulmonary bypass machine for an extended time, which resulted in her developing a disorder that prevented the blood from clotting. The plaintiffs wife lost all of her blood and died. Garcia, 244 Ill. App. 3d at 897, 613 N.E.2d at 1246.\nThe defendant in Garcia argued, as did defendant in the instant case, that it should not be liable under section 2 \u2014 314 of the UCC for breach of implied warranty of merchantability. The trial court found that the hospital could be liable, and in upholding the trial court\u2019s ruling, the appellate court stated that Cunningham makes it clear that the supplying of mitral valves constituted a sale, and therefore, it was not error to base the defendant\u2019s liability on breach of implied warranty of merchantability. While the appellate court acknowledged the statutory change following the Cunningham decision that limited liability of hospitals for the distribution of blood, the appellate court, citing Hill v. Jackson Park Hospital, 39 Ill. App. 3d 223, 226, 349 N.E.2d 541, 544 (1976), stated that the Cunningham decision was controlling with respect to surgical implements, drugs, food, and other, articles intended for use in the human body. Garcia, 244 Ill. App. 3d at 900, 613 N.E.2d at 1248. Therefore, Garcia and Cunningham are controlling here.\nMoreover, the cases relied upon by the majority, Pitler v. 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 facts in the instant case. In Pitler, the court stated that the implied warranty of merchantability under the UCC did not apply in that case because the transaction between the plaintiffs parents and the defendant hospital was for the rendition of services (radiation treatments). In so ruling, however, the court noted that \u201c[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 goods or that the stated warranties were breached in any manner.\u201d (Emphasis added.) Pitler, 92 Ill. App. 3d at 742, 415 N.E.2d at 1257-58.\nSimilarly, in Boddie, the appellate court found that the provision of construction services was not a sale of goods under the UCC. Boddie, 118 Ill. App. 3d at 531, 455 N.E.2d at 150. In Boddie, the plaintiff filed a claim for negligence, strict liability, willful and wanton conduct, and breach of warranty against the defendant, who was the general contractor for 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 plaintiffs employee, the United States Post Office, did not fall within the ambit of the UCC. The court based its ruling upon the language of the contract between 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 and services, with extensive excavation and demolition, and therefore, the construction contract between the defendant and the United States Post Office was clearly not a transaction for the sale of goods. Boddie, 118 Ill. App. 3d at 531, 455 N.E.2d at 150. Thus, the facts of Pitler (which does not allege UCC violations or the sale of goods) and Boddie (a contract for construction services) make these decisions distinguishable from the instant case.\nThe majority opinion erroneously dismisses the applicable Illinois case law, relying instead on Pitier, Boddie, and other states\u2019 case law. The majority cites nine cases, all from other jurisdictions, where courts dismissed products liability claims against hospitals based upon the sale of defective medical equipment. While there may be good policy reasons for creating a bright-line rule that hospitals are not liable for the sale of defective medical products under the UCC, the legislature has not done so \u2014 even though it could have done so when it made statutory changes following Cunningham. As such, Cunningham and Garcia should be followed. There is no authority for exempting hospitals for the sale of defective medical products.\nFor these reasons, I would reverse the trial court.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE MYERSCOUGH," } ], "attorneys": [ "Gary K. Laatsch and Martin J. Whittaker (argued), both of Pavalon, Gif-ford, Laatsch & Marino, of Chicago, for appellant.", "Kevin M. Miller and Timothy G. Shelton (argued), both of Hinshaw & Culbertson, of Chicago, for appellee." ], "corrections": "", "head_matter": "BRENDA BRANDT, Plaintiff-Appellant, v. SARAH BUSH LINCOLN HEALTH CENTER, Defendant-Appellee (Boston Scientific Corporation, Defendant).\nFourth District\nNo. 4\u201401\u20140641\nArgued December 11, 2001.\nOpinion filed April 23, 2002.\nMYERSCOUGH, J., specially concurring in part and dissenting in part.\nGary K. Laatsch and Martin J. Whittaker (argued), both of Pavalon, Gif-ford, Laatsch & Marino, of Chicago, for appellant.\nKevin M. Miller and Timothy G. Shelton (argued), both of Hinshaw & Culbertson, of Chicago, for appellee." }, "file_name": "0348-01", "first_page_order": 366, "last_page_order": 375 }