specially concurring in part and dissenting in part:
I respectfully concur in part and dissent in part. I concur with the majority that plaintiff’s UCC claim did not constitute a claim for “healing art malpractice” as defined in section 2 — 622 of the Code of Civil Procedure, and, therefore, plaintiff was not required to file a section 2 — 622 affidavit, I dissent, however, with the majority finding that hospitals are exempt from liability for the sale of defective products under the UCC.
The 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’s 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.
The 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’s 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’s heart was not functioning properly, and upon reopening the heart, the doctor discovered that part of the artificial valve was floating in the heart’s 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.
The defendant in Garcia argued, as did defendant in the instant case, that it should not be liable under section 2 — 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’s 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’s 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.
Moreover, 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 “[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.” (Emphasis added.) Pitler, 92 Ill. App. 3d at 742, 415 N.E.2d at 1257-58.
Similarly, 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.
The majority opinion erroneously dismisses the applicable Illinois case law, relying instead on Pitier, Boddie, and other states’ 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 — 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.
For these reasons, I would reverse the trial court.