or cooperated in prior peer review investigations; thus, allowing the re-opening of
closed wounds. Consistent with the rationale of the court below, Amendment 7
cannot and should not be applied retroactively.
The lower court's view that "existing law was sufficient to implement the
provisions of the Amendment and that no further legislation was necessary"
sharply collides with the Legislature's clear prerogative to enact supplemental
legislation, even where the constitutional amendment is "self-executing." Viewed
as a whole, section 381.028 clarifies significant ambiguities in Amendment 7 and
supplements it in such a manner as to facilitate its proper application.
Notwithstanding, should this Court deem any portions of the statute to be invalid,
the FHA urges the Court to sever them as unconstitutional and uphold the balance
of the statute. Furthermore, by any construction, records of adverse medical
incidents should not be made discoverable in legal proceedings, as such a process
would undermine ensuring peer review confidentiality by allowing persons who
are not "patients" to access records.
Finally, Amendment 7 must not be applied retroactively to any records
created prior to November 2004, as such a ruling would breach substantive vested
rights of persons who participated in the peer review process under the promise of