dissenting.
I respectfully dissent to the majority opinion in this ease. I would hold that the trial court properly granted summary judgment for Terry Walden, D.D.S. on Lena Jeffery’s claims against him for violations of the Deceptive Trade Practices-Consumer Protec*214tion Act (DTPA) and breach of warranty, and I would affirm the trial court’s judgment.
The majority correctly holds that Jeffery’s breach of contract claim against Walden was barred by the statute of frauds. Where the majority errs is in holding that Walden faded to meet his burden of showing that he was entitled to summary judgment on Jeffery’s DTPA and breach of warranty claims.
Jeffery alleged that Walden prepared unsuitable dentures for her. This allegation formed the basis of Jeffery’s claims under the DTPA and for breach of warranty as well as her breach of contract claim. Based upon these claims, Jeffery sought damages from Walden to compensate her for being without adequate teeth from the time she had her teeth extracted in 1988 and for mental anguish. Jeffery’s claims, whether called tort or contract claims, live as negligence claims because they were claims for lack of treatment or other claimed departure from accepted standards of medical care, health care, or safely. See Tex.Rev.Civ.StatANN. art. 4590i, § 1.03(a)(4) (Vernon Pamph.1993). The damages sought by Jeffery can only be characterized as damages resulting from a negligence claim.
Section 12.01(a) of the Medical Liability and Insurance Improvement Act provides:
Notwithstanding any other law, no provisions of Sections 17.41-17.63, Business & Commerce Code, shall apply to physicians or health care providers as defined in Section 1.03(3) of this Act, with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of a physician or health care provider.
Tex.Rev.Civ.Stat.Ann. art. 4590i, § 12.01(a) (Vernon Pamph.1993). Section 12.01 precludes a cause of action founded on negligence even if alleged as a violation of the DTPA. Waters v. Del-Ky, Inc., 844 S.W.2d 250, 258 (Tex.App.—Dallas 1992, n.w.h.); Chapman v. Wilson, 826 S.W.2d 214, 218 (Tex.App.—Austin 1992, writ denied); Wisenbarger v. Gonzales Warm Springs Hosp., 789 S.W.2d 688, 690-91 (Tex.App.—Corpus Christi 1990, writ denied). I would conclude that section 12.01 of article 4590i precludes Jeffery’s DTPA claim because her DTPA claim was based upon a negligence allegation.
For a breach of warranty claim to be applicable to this case, a sale of goods by a merchant who deals in goods of the kind must take place. See Easterly v. HSP of Tex., Inc., 772 S.W.2d 211, 213-14 (Tex. App.—Dallas 1989, no writ). Medical care providers, like Walden, are providers of services, not merchants selling goods. See id. at 214. Absent a specific showing that the sale of a good is not intimately related to a medical service provided, summary judgment is proper on a breach of warranty claim against a medical care provider. See id.
In this case, Jeffery alleged that Walden improperly fitted her dentures. In her affidavit filed in opposition to Walden’s motion for summary judgment, Jeffery said that she received “services for dentures” from Walden. In Walden’s affidavit in support of his motion for summary judgment, he stated he “fitted dentures” for Jeffery. There was no summary judgment evidence that the dentures were not intimately related to the service of fitting them provided by Walden. The summary judgment evidence showed that the sale of the dentures related intimately to the service provided of fitting those dentures. I would conclude that summary judgment on Jeffery’s breach of warranty claim was proper because there was no showing that the sale of the dentures was not intimately related to their fitting. This was not a case of a sale of an item apart from professional services provided by a dentist.
Section 12.01 of the Medical Liability and Insurance Improvement Act bars Jeffery’s DTPA claim, and her breach of warranty claim fails because there was no showing other than that the dentures intimately related to the service of fitting them. The trial court properly granted Walden summary judgment on Jeffery’s DTPA and breach of warranty claims. I would overrule Jeffery’s point of error and affirm the trial court’s summary judgment.