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Willis v. Columbus Med. Ctr. Inc.

Appellant's case was automatically dismissed, since no written order was entered for five years.

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Tracy and Lisa Willis challenge the dismissal of their medical malpractice action against Columbus Medical Center, Inc., Radiology Associates of Columbus, Inc., and Gilbert Maulsby, M.D., collectively, “CMC” for want of prosecution pursuant to OCGA § § 9-2-60 b1 and 9-11-41 e.2 Because no order was entered by the trial court within the statutorily mandated five-year period, the underlying lawsuit stood automatically dismissed as a matter of law. We therefore affirm. The relevant facts of this case are undisputed. On November 12, 2002, the Willises, on behalf of their minor son, filed a medical malpractice action against CMC, alleging that CMC’s negligent failure to properly diagnose a brain malformation in their son resulted in him suffering permanent mental and physical injuries. As a matter of strategy, the Willises intended to delay the actual commencement of a trial as long as possible in order to more thoroughly understand and be able to prove the true extent of their son’s injuries.

After some discovery had been conducted, the trial court signed an order in February 2005 directing the parties to mediation the “Mediation Order”. On its face, the Mediation Order provided that The Willises or the Willises’s attorney is directed to file promptly this order with the Clerk of the Superior Court and to provide promptly a copy of this order to the Office of Dispute Resolution with a completed MEDIATION REFERRAL FORM to schedule the mediation session. The Willises presented evidence, and the trial court held as a matter of fact that, despite the language contained in the Mediation Order, the Office of Dispute Resolution as a matter of practice generally took it upon itself to file such orders. It failed to do so in this case. Consequently, the Mediation Order was never filed, nor was any order ever entered in the record for a period in excess of five years from the inception of the lawsuit.

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