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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.

CONCLUSION

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

confidentiality.

19

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