I respectfully dissent. The majority’s reasoning, that in prohibiting compelled testimony, subdivision (b) of Evidence Code section 11571 authorizes voluntary testimony, ignores both the purpose of the statute and the background of decisional law against which it was enacted. Their conclusion rests on the dual premise that the statutory language is clear and unambiguous, and that exclusion of compelled testimony alone serves the legislative purpose underlying the statute. In my view, neither premise withstands scrutiny.
Section 1157 was enacted in response to two decisions: Brown v. Superior Court (1963) 218 Cal.App.2d 430 [32 Cal.Rptr. 527], and Kenney v. Superior Court (1967) 255 Cal.App.2d 106 [63 Cal.Rptr. 84]. In Brown, the Court of Appeal held that the substance of discussions of a county medical society committee, relating to a malpractice claim against a member of the society, were subject to the “work product” discovery privilege. Kenney allowed discovery of the records of disciplinary proceedings which related to a staff doctor who had been named as defendant in a medical malpractice *856action; however, with respect to disclosures made at the committee proceedings, it reaffirmed the Brown “work-product” privilege.
Section 1157 reaffirms the Brown holding that medical society review committee proceedings cannot be discovered; extends that exclusion to proceedings of hospital medical staff review committees; nullifies the Kenney holding that the records of such review committees are discoverable; and creates for the protected material an absolute immunity from discovery, rather than the conditional work-product privilege recognized in Brown and Kenney.
However, with respect to evidentiary use of the nondiscoverable matter, section 1157 is facially ambiguous. The statute is silent concerning voluntary testimony. Subdivision (b) provides that no one in attendance at a meeting of the specified committees “shall be required to testify” as to what transpired at that meeting. To say, as the majority do, that in prohibiting compelled testimony the Legislature consciously intended to permit voluntary testimony is, in my view, to give subdivision (b) more meaning than its terms will bear or its purpose permit. A more reasonable view is that in prohibiting compelled testimony the Legislature was addressing the specific concern expressed in Brown, supra, that the purpose of the medical society committee will be defeated if anyone present “must disclose” the substance of the discussion (218 Cal.App.2d at p. 443) and that “requiring such disclosure” would put an end to such meetings {ibid.). Quite simply, the Legislature, like the court in Brown, did not anticipate the possibility of voluntary testimony in view of the manifest purpose of this statute and for that reason failed to expressly prohibit such testimony, thereby leaving the statute ambiguous on this point.
Subdivision (c), in contrast to subdivision (b), refers without limitation to “[t]he prohibition relating to discovery or testimony.”2 In failing to modify “testimony,” but rather, treating as equivalent the prohibitions against discovery and against testimony, this phrase gives rise to the inference that all testimony, like all discovery, is prohibited. Moreover, subdivision (e) supports this inference. That subdivision specifies that the 1983 and 1985 amendments to the section3 do not exclude “use of relevant evidence” in criminal proceedings. This caveat suggests that the use in civil proceedings of relevant evidence within the ambit of the statute is barred.
*857“[T]he object of all construction of statutes is to ascertain and give effect to the intention of the legislature. [Citation.] In the analysis of statutes for the purpose of finding the legislative intent, regard is to be had not so much to the exact phraseology in which the intent has been expressed as to the general tenor and scope of the entire scheme embodied in the enactments. [Citation.] While the intention of the legislature must be ascertained from the words used to express it, the manifest reason and the obvious design of the law should not be sacrificed to a literal interpretation of such language. [Citation.]” (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 639 [122 P.2d 526]; accord, Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 858-859 [176 Cal.Rptr. 753, 633 P.2d 949].) Further, “where a statute is susceptible of different constructions, one leading to mischief or absurdity and the other consistent with justice and common sense, the latter will be adopted. [Citation.]” (Schulz v. Superior Court (1977) 66 Cal.App.3d 440, 446 [136 Cal.Rptr. 67].)
In Matchett v. Superior Court (1974) 40 Cal.App.3d 623 [115 Cal.Rptr. 317], the same court that decided Brown, supra, and Kenney, supra, considered the purpose and effect of section 1157. Commenting first on the function of hospital medical staff committees charged with responsibility for the competence of staff practitioners, the court stated, “the quality of in-hospital medical care depends heavily upon the committee members’ frankness in evaluating their associates’ medical skills and their objectivity in regulating staff privileges. Although composed of volunteer professionals, these committees are affected with a strong element of public interest. ” (Id., at p. 628.)
As the Matchett court noted, section 1157 “expresses a legislative judgment that the public interest in medical staff candor extends beyond damage immunity and requires a degree of confidentiality. ... It evinces a legislative judgment that the quality of in-hospital medical practice will be elevated by armoring staff inquiries with a measure of confidentiality, [f] This confidentiality exacts a social cost because it impairs malpractice plaintiffs’ access to evidence. In a damage suit for in-hospital malpractice against doctor or hospital [fn.] or both, unavailability of recorded evidence of incompetence might seriously jeopardize or even prevent the plaintiff’s recovery. Section 1157 represents a legislative choice between competing public concerns. It embraces the goal of medical staff candor at the cost of impairing plaintiffs’ access to evidence. [1] The statute, then, is aimed directly at malpractice actions in which a present or former hospital staff doctor is a defendant.” (40 Cal.App.3d at p. 629.)
The Courts of Appeal have uniformly held that the statutory exceptions set forth in subdivision (c) of section 11574 apply only to actions by phy*858sicians claiming wrongful or arbitrary exclusion from hospital staff privileges and do not apply to a malpractice proceeding in which the doctor or the hospital has been made a party. (Matchett v. Superior Court, supra, 40 Cal.App.3d at pp. 629-630.) “[S]uch circumstances do not open to discovery hospital staff records containing medical committee investigation reports and peer appraisals.” (Schulz v. Superior Court, supra, 66 Cal.App.3d at p. 446; see Matchett, supra; West Covina Hospital v. Superior Court (1984) 153 Cal.App.3d 134, 137-138 [200 Cal.Rptr. 162]; see also Brown v. Superior Court (1985) 168 Cal.App.3d 489, 500-501 [214 Cal.Rptr. 266]; cf. Henry Mayo Newhall Memorial Hosp. v. Superior Court (1978) 81 Cal.App.3d 626, 635 [146 Cal.Rptr. 542] [“benefits of section 1157 were [not] waived by reason of the fact that a complete transcript of the proceedings before the Hospital’s committee, . . . were filed in [doctor’s] administrative mandamus action”].)
Although the majority purport to recognize the legislative purpose articulated in Matchett, supra, they inexplicably and without any cited authority ascribe to the Legislature the additional purpose of encouraging voluntary participation on committees by relieving doctors of the “evidentiary burdens” in malpractice cases of “compelled discovery and required testimony.” Exclusion of compelled testimony but not voluntary testimony, the majority assert, strikes a proper balance between the competing legislative concerns of promoting voluntary participation on peer review committees and frank discussion, on the one hand, and providing an injured plaintiff access to evidence, on the other. When a doctor volunteers to testify, the argument goes, exclusion of voluntary testimony “[is] not necessary to encourage participation in the peer review program,” and any adverse effect such testimony may have on the confidentiality of the proceedings is outweighed by the plaintiff’s need for evidence.
This argument sets up a false balance and ignores the primary purpose of section 1157—to assure the candor and honest evaluation of each staff member’s competence essential to effective peer review, by removing the threat that the confidential discussion could be made public through medical malpractice litigation at the whim of any member of the review committee. To interpret section 1157 as do the majority would eliminate its utility in fostering open, frank and candid discussion. “The Legislature . . . sought to impose confidentiality on committee proceedings in order to allow committee members to be able to admit and thereafter deal with the faults of staff *859members without risking an adverse impact from the admission.” (Brown v. Superior Court, supra, 168 Cal.App.3d at p. 501. See Comment, Anatomy of the Conflict Between Hospital Medical Staff Peer Review Confidentiality and Medical Malpractice Plaintiff Recovery: A Case for Legislative Amendment (1984) 24 Santa Clara L.Rev. 661, 671.) “In the Legislature’s estimation, plaintiff access to records of peer review proceedings had a chilling effect on the proper performance of that review. [Fn.] The Legislature determined that the public interest in an elevated standard of medical care through medical staff peer review, outweighed the discovery needs of an individual plaintiff who, presumably, had other sources of information with which to support a cause of action[5].” (Comment, supra.)
To declare, as does subdivision (a), that certain matters are absolutely immune from discovery, yet to permit, as would the majority, their disclosure (i.e., “discovery”) at trial, not only achieves an absurd result, but renders sterile the immunity provisions of the statute (cf. Schulz v. Superior Court, supra, 66 Cal.App.3d at p. 445) and makes illusory the confidentiality the statute seemingly provides.
I agree with Justice Beach’s Court of Appeal opinion in this case where he stated: “[T]o permit unrestricted trial testimony about a medical staff committee meeting by any person at the meeting who happens to be willing to disclose the contents of what would otherwise be completely confidential proceedings . . . would punch a judicially created and legislatively unintended hole in the crucial shield of confidentiality provided to medical staff committees in medical malpractice actions. Such interpretation would directly contravene the vital policy underlying that immunity. . . . Candor and objectivity are essential to the effectiveness of these committees performing a vital role in monitoring and improving the quality of care in California hospitals. Yet, few physicians will candidly participate, or participate at all, in a committee meeting if the confidentiality of that meeting can be breached at the whim of any person attending.”
*860In my judgment, it flies in the face of the manifest purpose of the statute to permit voluntary testimony concerning the protected proceedings. The purpose of the statute to encourage candid assessment without adverse consequences is equally thwarted whether disclosure is compelled or voluntary.
The majority’s interpretation would, in my view, also have a serious adverse practical effect on the trial of the underlying action. Code of Civil Procedure section 2037 et seq. establish a discovery mechanism for expert witnesses who are to give trial testimony. The clear and obvious purpose of these provisions is to remove the element of surprise from the trial of lawsuits. Yet the majority’s holding which permits the voluntary testimony of a peer review committee member at trial—evidence which they admit is not discoverable pretrial—will bring about the very result which section 2037 et seq. intended to avoid. Ironically, in most cases, the victim of the surprise expert testimony will be the plaintiff. As pointed out by amicus, “the Legislature could not have intended a result which stands in stark contrast to every discovery mechanism and so profoundly violates fundamental notions of fair play.”
Consequently, unless and until the Legislature declares otherwise, I would construe section 1157 as creating an absolute bar to disclosure of the protected proceedings by either discovery or testimony, whether voluntary or compelled.6 I would affirm the Court of Appeal’s decision to grant the peremptory writ.
Grodin, J., and Lucas, J., concurred.
Petitioner’s application for a rehearing was denied July 21, 1986. Grodin, J., Lucas, J., and Panelli, J., were of the opinion that the application should be granted.
All further statutory references are to the Evidence Code unless otherwise indicated.
Subsequently enacted statutes, extending the provisions of section 1157 to additional committees, likewise refer without limitation to “the prohibition relating to discovery or testimony provided by Section 1157.” (§§ 1157.5, 1157.7, see also § 1157.6.)
The 1983 amendment extended the provisions of section 1157 to podiatric and registered dietician review committees (Stats. 1983, ch. 1081, § 2.5, p. 3865), and the 1985 amendment extended them to psychological review committees (Stats. 1985, ch. 725, § 1).
Subdivision (c) provides: “The prohibition relating to discovery or testimony does not *858apply to the statements made by any person in attendance at a meeting of any of those committees who is a party to an action or proceeding the subject matter of which was reviewed at that meeting, or to any person requesting hospital staff privileges, or in any action against an insurance carrier alleging bad faith by the carrier in refusing to accept a settlement offer within the policy limits.”
In a footnote at this point the Comment states that “[s]uch sources of information include the patient’s own medical records, access to the treating physician for deposition and discovery of other past or pending malpractice claims, hospital manuals of policy and procedure, and hospital incident reports. [Citation.]” (Comment, supra, at p. 671, fn. 48.)
Section 1157, moreover, “does not shield from discovery administrative activities which, while related to, are independent of the investigative and evaluative activities of medical staff committees” (Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal.App.3d 711, 726 [220 Cal.Rptr. 236]; see Schulz v. Superior Court, supra, 66 Cal.App.3d at p. 446), nor does it preclude discovery of records of nonqualifying hospital staff committees which may also yield useful information (see Henry Mayo Newhall Memorial Hosp. v. Superior Court, supra, 81 Cal.App.3d at p. 636). Although the substance of evaluation proceedings is nondiscoverable, a medical malpractice plaintiff is permitted to discover whether or not a defendant hospital evaluated the defendant-doctor. (Brown v. Superior Court, supra, 168 Cal.App.3d at pp. 501-502.)
For discussion of the statutory flaws of section 1157 and a proposal for remedying them, see Comment, supra, 24 Santa Clara L.Rev. at pages 678-679. See also Loveridge and Kimball, Hospital Corporate Negligence Comes to California: Questions in the Wake of Elam v. College Park Hospital (1983) 14 Pacific L.J. 803.