Dissenting Opinion.
I respectfully dissent. First, Mr. Devi-tre was not Dr. Rotman’s “patient” because Mr. Devitre was not a “client of the medical service Dr. Rotman provides.” Second, Mr. Devitre’s “true claim” is not medical negligence. Mr. Devitre’s true claims are the assault and battery claims alleged in his petition. Therefore, the trial court erred in dismissing Mr. Devitre’s petition for failure to submit a health care affidavit pursuant to section 538.225.1
Mr. Devitre was not Dr. Rotman’s patient. Dr. Rotman did not think so, he took the position that Mr. Devitre was not a patient. Dr. Rotman’s position is supported by the definition of “patient.” As noted in the principal opinion, a “patient” is either a “sick individual ... under the care and treatment of physician ...” or “a client for the medical services” of a physician. Mr. Devitre was not under the care and treatment of Dr. Rotman or was Mr. Devitre a “client” of Dr. Rotman. Dr. Rotman examined Mr. Devitre at the request of the defendant in an adversarial legal proceeding. There was no confidentiality or expectation of confidentiality. Although the principal opinion notes that Mr. Devitre consented to the examination, in reality, Mr. Devitre had no real choice. Rule 60.01(a) authorized the trial court to order Mr. Devitre to undergo the examination. If Mr. Devitre refused to undergo an independent medical examination, he likely faced litigation sanctions. Dr. Rotman’s examination of Mr. Devitre was nothing but a discovery effort by the defendant.
The principal opinion also holds that Mr. Devitre’s “true claim” is medical negligence, not assault and battery. The sum and substance of Mr. Devitre’s petition is precisely what he alleged, that he was battered and assaulted. Mr. Devitre alleged that Dr. Rotman’s manipulation of his arm hurt, and he told Dr. Rotman “don’t press on me” and “don’t do that doctor.” The most plausible way to read these allegations is to conclude that Mr. Devitre wanted Dr. Rotman to stop manipulating his arm. “Don’t do that” clearly meant “don’t [manipulate my arm].” Mr. Devitre’s allegations clearly reflect that he did not consent any further manipulation of his arm by Dr. Rotman.
Mr. Devitre also pleaded an assault claim. The principal opinion faults him for not pleading apprehension. If someone tells another to stop hurting him, it seems apparent that the reason for the statement is that the person is in apprehension of further harm.
Mr. Devitre’s “true claim” is for assault and battery. I would hold that the re*337quirements of section 538.225 are inapplicable.
. All statutory citations are to RSMo Supp. 2010.