dissenting.
I respectfully dissent.
The statute that the trial court relied upon in determining defendant Kelly Win-dler’s (hereafter referred to as counter-claimant) counterclaim is § 538.225.1.1 It states, as quoted in n. 1 in the majority opinion:
In any action against a health care provider for damages for personal injury ... on account of the rendering of or failure to render health care services, the plaintiff or his attorney shall file an affidavit with the court stating that he has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition. (Emphasis added.)
The language in § 538.225.1 is derived from the elements that must be proved to show that a medical practitioner was negligent. To prove negligence, a medical practitioner must be shown to have failed to use the degree of skill that an ordinarily skillful, careful and prudent practitioner in the same field would have used under the same or similar conditions and that there was a causal connection between the act or omission about which there was a complaint which resulted in injury (i.e. damage) *173to a patient. Fisher v. Wilkinson, 382 S.W.2d 627, 630 (Mo.1964); Jines v. Young, 732 S.W.2d 938, 944 (Mo.App.1987).
The affidavit is a means by which a plaintiff, shortly after he or she has filed a lawsuit, demonstrates that there is substantial evidence of professional negligence — medical malpractice. The affidavit must be given by an expert, a person who is competent to testify about the subject matter that is before the court. By the affidavit, the expert states that the elements of negligence required in a medical malpractice case are present. Its purpose is to determine that the action filed is not frivolous. Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503, 507-08 (Mo. banc 1991).
A health care provider is competent to assess the conduct of another health care provider for the purpose of formulating a meaningful opinion regarding whether or not a particular act or omission that occurred in the course of providing medical care was done negligently and, if so, whether it “directly caused or directly contributed to cause the damages claimed in. the petition” filed in a particular ease. § 538.225.1.
The counterclaim in this case, however, is not an action for negligence. It is an action for false imprisonment. A medical expert is not qualified to opine whether particular acts constitute false imprisonment. That determination is outside a medical practitioner’s area of expertise. There is no logical or legal reason for an affidavit such as is required by § 538.225.1 to be filed in an action for false imprisonment.
The majority opinion relies on Jacobs v. Wolff, 829 S.W.2d 470 (Mo.App.1992). The language in Jacobs is strong. It includes the statement:
The legal question is whether the gravamen of plaintiffs claims for damages consists of claims against Dr. Wolff and nurse Unser in their capacity as health care providers. Given the relationship of the parties and the true claim for damages relates to wrongful acts of a health care provider, we find § 538.225 RSMo 1986 applies regardless of the characterization of the claims by plaintiff (Emphasis added.)
Id. at 472. However, the language has meaning only with respect to the particular facts in that case. It should not blanket fact situations different from those in that ease.
In Jacobs, the issue for determination was whether Vital Cardiac Laboratories, an organization that apparently administered cardiac rehabilitation programs prescribed by physicians who were not its employees, was a health care provider within the meaning of § 538.225. 829 S.W.2d at page 473. In so finding, the court referred to numerous allegations throughout pleadings that contained language regarding medical knowledge and duties. Id. at 472. The opinion in Jacobs does not, however, otherwise identify the nature of any of the causes of action pleaded other than one that the trial court had not dismissed for failure to file a § 538.225.1 affidavit— Count IX which was an action that sought an injunction.
I perceive the legal question in this case to be whether or not counterclaimant was voluntarily confined or was confined pursuant to the provisions of § 632.305. Its resolve involves no medical issue. It involves a legal issue only, notwithstanding that counterclaimant’s claim for damages is against a health care provider. I would reverse the order dismissing the counterclaim and remand the case to the trial court.
. References to statutes are to RSMo 1986.