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Amendment 7 records to the rules of discovery might actually circumscribe access

by requiring that the information be relevant to the issues in the proceedings or that

it be subject to other discovery limitations.

Therefore, the proper procedure for a patient who wishes to obtain the

records during litigation would be to make the request unconnected with discovery.

However, even if this Court were to conclude that a request made as a part of

discovery is equivalent to a formal request as contemplated by Amendment 7, it

should be made clear that the disclosure of the records need only be made to the

patient and not to the other parties in the lawsuit, and that the records are not

further discoverable from the patient.

The FHA hospitals submit that the Legislature has made the correct

interpretation of Amendment 7 by declining to repeal the statutory privileges that

protect such information from discovery in lawsuits, but protecting patients' access

to the same information through other means; the Court should uphold that

legislative interpretation.

III.

SHOULD AMENDMENT 7 BE APPLIED RETROACTIVELY?

The court below correctly decided this issue by ruling that Amendment 7

cannot be applied retroactively to records created prior to November 2004. The

well-established rule is that constitutional amendments are given prospective effect

only, unless the text of the amendment or the ballot statement clearly indicates

15

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