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Brandt v. Sarah Bush Lincoln Health Center

April 23, 2002

BRENDA BRANDT, PLAINTIFF-APPELLANT,
v.
SARAH BUSH LINCOLN HEALTH CENTER, DEFENDANT-APPELLEE, AND BOSTON SCIENTIFIC CORPORATION, A DELAWARE CORPORATION, DEFENDANT.



Appeal from Circuit Court of Coles County-No. 00L60 Honorable Ashton C. Waller, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

UNPUBLISHED

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 plaintiff's 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 plaintiff's 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 plaintiff's 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 novo. 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

Plaintiff's 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 ...


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