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Woodruff v. Gould

The trial court erred in transferring a medical malpractice action to another county pursuant to O.C.G.A. § 9-10-31 c, since § 9-10-31 c is unconstitutional.

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Plaintiffs filed this medical malpractice case in Fulton County, the county of residence of the defendant physician. Two years later, the physician’s professional group moved to transfer the case to Gwinnett County pursuant to OCGA § 9-10-31 c. Plaintiffs opposed the motion, asserting the statute was unconstitutional. The motion to transfer was granted, but the order granting the motion was certified for immediate review.1 We granted plaintiffs’ application for interlocutory review to determine 1 whether OCGA § 9-10-31 c is constitutional and, if so, 2 whether it could be applied retroactively. In the meantime, in another case, we answered the first part of our inquiry in the negative, holding that OCGA § 9-10-31 c was unconstitutional because it empowers a non-resident defendant to change venue. EHCA Cartersville, LLC v. Turner , 280 Ga. 333 SE2d 2006. We adhere to our ruling in Turner , finding OCGA § 9-10-31 c unconstitutional. It follows that it was error to transfer this case to the Superior Court of Gwinnett County pursuant to OCGA § 9-10-31 c. The inquiry concerning the retroactive application of the statute is moot.

Upon the filing of the remittitur from this Court, the Superior Court of Gwinnett County shall enter an order returning this case to its original forum.

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