IN THE SUPREME COURT OF THE STATE OF MONTANA
E.H. KNIGHT,
Plaintiff and Appellant,
-vs--
JAMES H. JOHNSON, JR.; The Office of
YELLOWSTONE COUNTY SHERIFF; MIKE SHAFER,
Sheriff, and YELLOWSTONE COUNTY,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cate Law Firm; Jerome J. Cate, Billings, Montana
For Respondent:
Crowley, Haughey, Hanson, Toole & Dietrich; Jon T.
Dyre, Billings, ilontana
Submitted: March 16, 1989
P r Justice Fred J.Weber delivered the Opinion of the Court.
l.
This appeal arises from a negligence suit brought by Mr.
E.H. Knight against Dr. James H. Johnson. The District Court
of the Thirteenth Judicial District granted summary judgment
in favor of defendant, an6 plaintiff appeals. We affirm.
The issue presented for our review is whether a treating
physician has a duty to appear and testify at the trial of a
patient, when the treating physician was not served with a
subpoena.
The plaintiff in this case was injured in a fight at the
Seventeen Bar in Billings, Montana. He was treated for
injuries by Dr. James H. Johnson. PlaintifS subsequently
filed suit against Seventeen Ear and the person who alleged]-y
assaulted him. The plaintiff anticipated that Dr. Johnson
would testify at that trial regarding plaintiff's injuries.
However, Dr. Zohnson was not served with a subpoena and did
not appear at the trial. The plaintiff file6 suit against
Dr. Johnson on April 13, 1988, alleging that Dr. Zohnson
negligently breached a duty to testify on his patient's
behalf. Dr. Johnson moved for summary judgment, asserting
that a physician has no legal duty to appear at a patient's
trial. The District Court granted the motion for summary
judgment.
The facts which give rise to the suit against Dr. John-
son are stated by affidavits from witnesses, and are summa-
rizec? as follows. Plaintiff's trial against Seventeen Bar
and the defendant involved in plaint-iff's assault charge was
set 5or February 17, 1.988. In preparation for trial, Dr.
Johnson was deposed by attorneys for the Seventeen Bar on
January 30, 1988. Counsel for pl-aintiff was present at that
deposition. There was no further contact between plaintiff's
counsel and Dr. Johnson until plaintiff's counsel sent a
letter dated February 1 0 , 3988 to Dr. Johnson, reminding him
of the trial date and of the necessity of his testimony
there. The letter stated that Dr. Johnson was scheduled to
testify on February 18 at 9:30 a.m. In the letter plain-
tiff's counsel also stated that he would subpoena Dr. Johnson
because without Dr. Johnson's testimony the case could be
dismissed. This letter arrived at Dr. Johnson's office on
February 12, 1988. When Dr. Johnson's secretary received the
letter from plaintiff's counsel she called his office and
left a message that Dr. Johnson was out of town and would not
return until February 17.
The day before the letter arrived, on February 11, a
process server from Yellowstone County came to Dr. Johnson's
office with a subpoena. The office was not informed of the
purpose 05 the subpoena. Dr. Johnson's secretary informed
the server that the doctor was with a patient and would not
be available for an hour. The process server then left the
office without serving Dr. Johnson. The process server
returned on February 12, but was informed that Dr. Johnson
had left for a seminar in New Orleans and would not return
until the late afternoon of February 17, 1988. Thus Dr.
Johnson was never served with the subpoena. The subpoena was
not returned to plaintiff's counsel and the Yellowstone
County Sheriff's Office did not notify plaintiff's counsel of
the failure of service.
On the morning of February 18, when Dr. Johnson's testi-
mony was scheduled, plaintiff's attorney called Dr. Johnson's
office to see if he had left for the trial. He was told at
that time that Dr. Johnson was performing myelograms and
would not be available to testify. Plaintiff's counsel was
also informed at that time that Dr. Johnson had not been
serve$ with the subpoena. Plaintiff's counsel testified that
"the woman on the phone advised me that Dr. James H. Johnson,
Jr. was not going to appear for trial, and that even if he
was served with a subpoena, he would not appear and testify
on behalf of E.H. Knight." This statement is disputed by
defendant.
Plaintiff alleges that because Cr. Johnson failed to
appear at trial, he was forced to accept a settlement of the
case for less than the case deserved. The plaintiff urges
that the doctor/patient relationship established a duty on
the part of Dr. Johnson to testify at his trial, that Dr.
Johnson breached this duty, and that plaintiff was damaged by
this breach.
On appeal, we are asked to determine whether a physician
has a duty to appear and testify at a patient's trial, even
thcugh the doctor was never subpoenaed. While Montana has
not previously recognized such a duty, Mr. Knight asks this
Court to create this fiuty.
In considering whether a duty should be created, the
i-nitialinquiry is whether there is a need for such duty. As
stated by one authority:
The statement that there is or is not a duty
begs the essential question--whether the plain-
tiff 's interests are entitled to legal protection
against the defendant's conduct.
W. Page Keaton, Prosser and Keaton on Torts, S 53, at p. 357
(5th Ed. 1984).
The plaintiff's interest in the present case is the need
for a process whereby one may compel favorable witness testi-
mony. This need is fulfilled statutorily in Montana through
the subpoena process. Compelled attendance and testimony is
established pursuant to S 26-2-301, MCA, as follows,
A witness served with a subpoena must attend
at the time appointed, with any papers under his
control required by the subpoena, and answer all
pertinent and legal questions and, unless sooner
discharged, must remain until the testimony is
closed.
Additionally, Rule 45 (a), M. R.Civ.P., provides for
compelled attendance and testimony of a witness through the
issuance of a subpoena. Rule 45(c) states that service of a
subpoena "must be made so as to allow the witness a reason-
able time for preparation and t-ravel to the place of atten-
dance." The remedy for failure to testify when served with a
subpoena is damages through a private cause of action. See,
$j 26-2-105, MCA.
The subpoena procedure for obtaining witnesses is effi-
cient, orderly, and gives consistent and reliable results.
Because the need for compelled testimony already has adequate
protection, we conclude that there is no persuasive reason to
create a duty which would also satisfy this need.
Plaintiff cites to Spaulding v. Hussain ( N . J . Super
1988), 551 A.2d 1022, and Green v. Ot-enasek fMd. 1372), 296
A . 2 2 597, in support of his position. However, these cases
do not establish the asserted duty and are not dispositive.
Research has discLosed no authority supporting plaintiff's
position. We prefer to Follow the general. rule that "a
condition precedent to an action against a witness for
breaching his duty to testify is the issuance of a subpoena."
Fletcher v. Bolz (Ohio App. 1987), 520 N.E.2d 22, 25; 81 Am.
Jur.2d, Witnesses S 28.5 (1976).
We decline to create the duty which plaintiff urges.
The District Court correctly held that no duty exists for a
physician to testify at the trial of a patient, absent com-
pulsory process. We affirm the summary judgment granted by
the District C o u r t .
We C m c u r :