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Court of Appeal, Second District, Division 2, California.

WEST COVINA HOSPITAL, Petitioner, v. SUPERIOR COURT of California, County of Los Angeles, Respondent, Terri Jo TYUS, et al., Real Party in Interest.


Decided: March 18, 1985

Hagenbaugh & Murphy, Los Angeles, Horvitz & Levy, Ellis J. Horvitz and David S. Ettinger, Encino, for petitioner. No appearance for respondent court. Shan K. Theyer, Torrance, for real party in interest.

This writ petition presents the question of whether evidence of discussions of a Hospital Committee, which evidence is prohibited by statute from being disclosed, may nonetheless be introduced on the basis that the witness, who was one of the persons at a committee meeting, is willing to testify and purports to “waive the privilege.”   The answer is “No.”   The idea that an individual may “waive the privilege” is incongruous to the provisions and purpose of the statute.


Petitioner, West Covina Hospital (Hospital), is a defendant in a medical malpractice action brought by real party in interest (plaintiff), who alleges negligence by one of Hospital's physicians and also that Hospital is liable to her for negligently selecting and retaining that physician on its staff.  (See Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 183 Cal.Rptr. 156.)

Hospital, like other hospitals throughout the state, maintains committees composed of hospital staff physicians which bear responsibility for evaluating the qualifications of physicians applying for staff privileges and for reviewing the conduct of physicians already on the hospital staff.   Because confidentiality is vital to the proper functioning of these critically important committees, the Legislature enacted Evidence Code section 1157, which provides comprehensive immunity from discovery for the proceedings and records of hospital medical staff committees.  Section 1157 also provides that “no person in attendance at a meeting of any such committee shall be required to testify as to what transpired thereat.”

Plaintiff has attempted several times to overcome the operation of Evidence Code section 1157 by seeking to obtain discovery of the proceedings and records of the Hospital's medical staff committees.   An early attempt was rejected by a judge of respondent court and plaintiff's subsequent petitions to this court and to the Supreme Court were denied.   On her second attempt, a different trial judge granted her motion to compel production of protected documents.   In our previous published opinion, we granted writ relief to Hospital, holding such order for production to be error and prohibited by section 1157.   (West Covina Hospital v. Superior Court (1984) 153 Cal.App.3d 134, 200 Cal.Rptr. 162, hg. den.)

Plaintiff now proposes to call as a witness at trial a physician, Dr. Anwar, who served on a medical staff committee of Hospital when the committee was evaluating the allegedly negligent physician, to testify about specific details of that evaluation.   Over objections of Hospital, a third trial judge ruled that the physician may so testify as long as he does so voluntarily.   The judge stated, “a committee member may waive the exclusion of 1157, if they choose to.   And by that I mean that a committee member can come into court and tell us of the entire proceeding in a medical staff committee.”   Hospital petitions this court for writ to prevent such disclosure.   We issued an alternative writ.   We now grant the petition and issue the writ.


The trial court's ruling is error.   It raises the important issue whether Evidence Code section 1157 should be interpreted to 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.   Such an interpretation 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.  “Section 1157 was enacted upon the theory that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity.”  (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 629, 115 Cal.Rptr. 317.)   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.

The trial court erred.   The unavailability of the testimony is not because the statute creates any individual privilege to each of the physicians present at such committee meeting.   Rather, the statute expressly, clearly and totally prohibits presentation of discovery of such evidence except in particular enumerated circumstances.   The statute creates specific prohibition against the use of such evidence.   The legislative intent is discerned by the statute itself, in reference to its procedural effect, by use of the words:  “the prohibition relating to discovery or testimony․”

In our decision of West Covina Hospital v. Superior Court (Tyus), supra, 153 Cal.App.3d 134, 200 Cal.Rptr. 162, we have already explained that even though the testimony might be relevant and material, other more compelling reasons support the Legislature's decision to prohibit such testimony.   The same reasoning applies to the present attempt.   In other words, the same societal value of permitting complete and thorough discussion by the committee in order to ascertain the truth of the facts in the matters and issues before such committee, justify the prohibition of disclosure of the statements made therein even though one of the members thereof is willing to testify.   The willingness to “waive the privilege”, a privilege we are unable to discern as belonging to any such participant, does not fall within any of the three statutory exceptions to the prohibition.

The statute clearly established that what is said at such committee meetings “shall not” be discovered or testified to.   The words are clear and understandable.   A participant at such meeting cannot be permitted to override the legislative command simply because he is “willing” to do so.

The petition is granted.   Let a writ issue commanding the trial court:  (1) to vacate its order or decision to allow the testimony of Dr. Anwar;  and (2) to make and enter a new and different order granting petitioner's motion in limine that said proposed testimony or evidence shall not be admitted.

BEACH, Associate Justice.

ROTH, P.J., and GATES, J., concur.