Appellate jurisdiction lacking in pandemic immunity appeal

The North Carolina Supreme Court held that the Court of Appeals erred in asserting jurisdiction over a medical defendants’ interlocutory appeal involving the state’s Emergency or Disaster Treatment Protection Act. The case stemmed from medical care provided at the outset of the COVID-19 pandemic, when the General Assembly enacted the Emergency Act to protect health care providers from civil liability for acts or omissions made in good faith while responding to pandemic-related conditions. The statute’s immunity did not extend to acts of gross negligence.

The plaintiff sued the defendants for negligence and gross negligence, alleging that a physician’s choice of surgical method, postoperative care, and response to infection fell below the standard of care. The defendants sought dismissal, arguing that they were immune from suit under the Emergency Act and that the complaint also failed to meet Rule 9(j)’s medical-malpractice certification requirements. When the trial court denied dismissal, the defendants appealed.

The Supreme Court explained that interlocutory orders—such as denials of motions to dismiss—are reviewable only when they affect a substantial right that would be lost without immediate review. Although statutory immunity can sometimes protect a substantial right, appellate review before final judgment is proper only when the statute confers immunity from suit, not merely immunity from liability. The Emergency Act’s protections fall into the latter category.

The Court further concluded that N.C.G.S. § 1-277(b), which permits immediate appeals from orders rejecting challenges to personal jurisdiction, did not apply here, as the defendants’ arguments centered on subject-matter jurisdiction and failure to state a claim. Accordingly, the Court vacated the Court of Appeals’ judgment and remanded for further proceedings in the trial court.

The 18-page opinion is Land v. Whitley, Lawyers Weekly No. 010-039-25.