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 
Plr. Justice Fred J.Weber delivered the Opinion of the Court. 

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. Johnson are stated by affidavits from witnesses, and are summarizec? 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 10, 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 plaintiff'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 testimony 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-nitial inquiry 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 plaintiff '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 testimony. 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 reasonable time for preparation and t-ravel to the place of attendance." 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 efficient, 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.22 597, 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 compulsory process. We affirm the summary judgment granted by 

the District Court. 
We Cmcur: