Opinion
No. 4D05-4310.
November 8, 2006.
Appeal from the Circuit Court, Seventeenth Judicial Circuit, Broward County, Robert L. Andrews, J.,
Vanessa A. Reynolds and Janine Kalagher McGuire of Conrad Scherer, LLP, Fort Lauderdale, for petitioner.
Philip M. Burlington of Burlington Rockenbach, P.A., West Palm Beach, and Scott M. Newmark of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for respondents.
Jerome W. Hoffman of Holland Knight LLP, Tallahassee, and Michael G. Tanner and Cynthia L. Hain of Holland Knight LLP, Jacksonville, for Amicus Curiae Florida Hospital Association, Inc.
Petitioner seeks certiorari review of a trial court order requiring the production of incident reports and peer review records in a medical malpractice suit pending since 1996. Petitioner sought these records after the voters adopted Amendment 7 on November 2, 2004. See Art. X, § 25, Fla. Const. (2004) ("In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident."). The Legislature enacted legislation construing Amendment 7 not to apply to "records created, incidents occurring, or actions pending before November 2, 2004." See Chap. 2005-265, § 1, Laws of Fla. (effective June 20, 2005); see also § 381.028(5), Fla. Stat. (2006). In ordering the production of these medical records, the trial court held that Amendment 7 was self-executing and extended to records created before its adoption. The trial court therefore held the statute unconstitutional.
We agree with the trial court's conclusions and deny the petition. In doing so, we adopt the First District's reasoning and rulings in Notami Hospital of Florida Inc. v. Bowen, 927 So.2d 139 (Fla. 1st DCA 2006). We note that the Fifth District has also addressed these issues in Florida Hospital Waterman Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006). The Fifth District held the statute unconstitutional and the constitutional provision self-executing, but did not conclude that it could be retroactively applied. We agree with the retroactivity analysis contained in Notami We therefore certify conflict with Buster. Petition denied.
WARNER, POLEN and TAYLOR, JJ., concur.