Montana Attorney General Opinion 15-113

Opinion No. 113 Insanity Hearings- Physicians- Resi· dence. HlDLD: Irregularity does not nec- essalily result in an insanity hearing fl'om the fact that one of the attending physicians resides in another state. March 15, 1933. You have requested an opinion from this office as to whether or not it would be permissible for the officials of your county to obtain the attendance of a doctor from Beach, North Dakota, which is ten miles from the county seat, at insnnity Iwarings in Wibnux County, or whether the law requires a ttendance of a pl'llcticing physician resident in the State of Montana. You stnte that there is only one doctor re- siding in the county and the nearest othel' doctor resides at Glendive, in Dnwson County, thirty-one miles away. Section 14a3, R. C. M. 1921, is as fol- lows: "The judge, or in case of his a hsence, the chairman of the board of cOllllty commisl"iollel's, must also issue subpoenas for at least two graduates of medicine to nppear and attend such exnmination". These grnduates of medicine must appenr nnd answer all questions, hear testimony, personally examine the al- leged insane person, and, if they so find, certify as to his insanity. Sec- tions 1434, 1435, aIHI 14RG, R. C. M. 1921. There is nothing in the statutes pro- hihiting the attendance of a phYSician from another county. Indeed. Section 1141, which provides that the fees and mileage of such physiCians shall be paid by the county where the examina- tion is held, by implication permits it. Wlhile it is true that Seetion 3118 R. C. M. 1921 requires every person "wish- ing to prnctice medicine or surgery in any of the departments of this state" to apply for a certificate to the State Hoard of Medical Examiners, never- theless attendance under subpoena at an insanity hearing cannot be consid- ered as practiCing medicine under sec- tion 3122 R. C. M. 1921. Rather, we believe that attendance a t such a hearing comes within the ex- ceptions to that section, provided for in Section 3121, that ". * • • this act shall not apply • * * to phy- sicians and surgeons in actual consul- tation from other states". We are strengthened in this helief by the lan- guage of Section 1483, quoted above, "must also issue subpoenas for at least two graduates of medicine". It is sig- nificant that the legislature did not use the words "two practicing physi- cinns". Other problems arise concurrentlv with the question you submit ,,-hich w"e are suggesting for your consideration. Section 1433, above, provides that the judge or the chairman of the board of county commissioners, shall "sub- poena." Sen'ice of a subpoena of a state court outside of the state where it is issued is a nullity. (40 Cyc. 2165). Again, it has been held that witnes- ses coming from without the state are entitled to mileage only from the state line to the place of trial, both coming to and going from the place of trial, hut are not entitled to expenses in- curred without the state. Chilcott v. Rea, 52 Mont. 1;34, 140; Bullard v. Zimmermall et aI., 88 Mont. 271, 281; 88 OPIXIOXS OF THE AT1:0RXEY GENERAL Yol. 10 Opinions of Attorney General, 270. Howeyer, these considerations are dehors your inquiry, and we are not asked to render an opinion concerning them at this time. In answer to your question, it is our opinion that no ir- regularity necessarily results in an in- sanity hearing from the fact that one of the attending ph~'sicians resides in another state.