BRENDA BRANDT, Plaintiff-Appellant, v. SARAH BUSH LINCOLN HEALTH CENTER, Defendant-Appellee (Boston Scientific Corporation, Defendant), 329 Ill. App. 3d 348

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 Sarah Bush Lincoln Health Center’s motion pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure to dismiss plaintiffs amended complaint. 735 ILCS 5/2—615, 2—619 (West 2000). We affirm. I. BACKGROUND In December 1998, plaintiff purchased a ProteGen Sling (sling) from defendant to treat her incontinence. The sling was surgically implanted in plaintiff at defendant’s 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 “upon 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’s] standard of performance for [its] products or customer expectations.” 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. In 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—101 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 — 622 physician’s affidavit to the complaint. 735 ILCS 5/2—622 (West 2000). In January 2001, the trial court granted defendant’s motion to dismiss, finding that the alleged actions of defendant were related to plaintiffs medical condition and treatment, and therefore, a physician’s affidavit was required. Plaintiff was given leave to file an amended complaint to include a

section 2 — 622 physician’s affidavit. In 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 — 622 physician’s 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’s order in that count IV was a variation of healing art malpractice and therefore required a

section 2 — 622 affidavit. Defendant further argued that it was not a “merchant” 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’s motion to dismiss count IV of the amended complaint for failure to meet the pleading requirements of

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 the pubovaginal sling sold by defendant to plaintiff was a sale of goods under

article 2 of the UCC (810 ILCS 5/2—101 through 2—725 (West 1998)), and whether the allegation of breach of implied warranty of merchantability based upon defendant’s sale and distribution of the sling involved “healing art malpractice,” thereby requiring the attachment of a

section 2 — 622 physician’s affidavit to the amended complaint. A. Standard of Review Our review of the trial court’s order granting defendant’s 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’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 Plaintiffs amended complaint alleged one count of breach of implied warranty of merchantability under

section 2 — 314 of 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 ***, 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. ***

(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 are used[.]” 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 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.” 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 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). The 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. In general, when a person seeks medical care from a hospital, the primary purpose of the transaction is to obtain the hospital’s 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’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, 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). A 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. In this case, plaintiff sought the hospital’s 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. Plaintiff 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’s liability on breach of implied warranty of merchantability under

section 2 — 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’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 of transfusion was a sale. The legislature responded to Cunningham by passing legislation to overrule that decision. See Pub. Act 77—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 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 “sale,” 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. C. Requirement of

Section 2 — 622 Affidavit Although 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 “healing art malpractice” as defined in

section 2 — 622 of the Code of Civil Procedure (735 ILCS 5/2—622 (West 2000)) and that plaintiff therefore needed to file a

section 2 — 622 affidavit. The legislature’s purpose in passing

section 2 — 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’s Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139, 1142 (1992).

Section 2 — 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. The 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 — 622 affidavit. As a final note, we will address defendant’s argument that plaintiff must present expert medical testimony to fully recover direct and consequential damages and, therefore, must file a

section 2 — 622 affidavit. Defendant seems to argue that

section 2 — 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. We have already found that plaintiffs claim does not involve “healing art malpractice,” which is the trigger for applicability of

section 2 — 622. Therefore, any medical testimony that may be presented in this case will not require the filing of a

section 2 — 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 — 622 affidavit is not required to present medical evidence of damages in other non-malpractice actions. See Mooney v. Graham Hospital Ass’n, 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). III. CONCLUSION We affirm the trial court. TURNER, J., concurs.