IN THE SUPREME COURTOF THE STATEOF MONTANA

E.H. KNIGHT, Plaintiffand Appellant, -vs-- JAMES H. JOHNSON, JR.; The Office of YELLOWSTONE COUNTY SHERIFF; MIKE SHAFER, Sheriff,and YELLOWSTONE COUNTY, Defendantsand Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, TheHonorableG. Todd Baugh, Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
Cate Law Firm; JeromeJ. Cate,Billings,Montana
For Respondent: Crowley,Haughey,Hanson,Toole & Dietrich;Jon T. Dyre,Billings, ilontana

Submitted: March 16, 1989Plr. Justice Fred J.Weber delivered the Opinion of the Court.

This appeal arises from a negligence suit brought by Mr. E.H. Knight againstDr. James H. Johnson. TheDistrictCourt of the Thirteenth Judicial District granted summary judgment in favor of defendant, an6 plaintiff appeals. We affirm. The issue presented for our review iswhether 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 casewas 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 SeventeenEar 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 inplaint-iff'sassault chargewas 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-aintiffwas present at that deposition. There was no further contactbetween plaintiff'scounsel 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 thathewould subpoenaDr. 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 amessage that Dr. Johnsonwas 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. Johnsonwas never servedwith the subpoena. The subpoenawas 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 themorning of February 18,when Dr. Johnson's testimony was scheduled,plaintiff's attorney calledDr. 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"thewoman on thephone advisedme thatDr. 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. Johnsonbreached thisduty,and thatplaintiffwas damaged by thisbreach. On appeal, we are asked to determinewhether aphysician 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 iswhether there is a need for such duty. As stated by one authority:


### The statement that there 

### is or is not a dutybegs the essential question--whether the plaintiff 's interests are entitled to legal protection against the defendant'sconduct.
W. Page Keaton, Prosser and Keaton on Torts, S 53, at p. 357

(5thEd. 1984). Theplaintiff's interest in thepresent case is the need for a process whereby onemay 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-ravelto the place of attendance." The remedy for failure to testify when servedwith a subpoena is damages through aprivate 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 theneed for compelled testimony already has adequate protection,we conclude that there isnopersuasive reason to create a

### dutywhichwould also satisfy thisneed. 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 (OhioApp. 1987), 520N.E.2d 22, 25; 81

### Am. Jur.2d,WitnessesS 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: