On February 16, 2022, Doris Land and her husband filed their North Carolina medical malpractice action against Dr.
Whitley, Physicians East, P.A. d/b/a Greenville OB/GYN, and Pitt County Memorial Hospital, Inc. d/b/a Vidant Medical Center and d/b/a Vidant SurgiCenter, for negligence and gross negligence. Ms. Land argued that Dr. Whitley’s choice of a riskier surgical method, postoperative care, and response to signs of infection violated the duty of care she owed to Ms. Land.
Defendants moved to dismiss Ms. Land’s lawsuit on May 2, 2022 and May 9, 2022. On October 24 and 25, 2022, defendants amended their motions to dismiss on the grounds that: (1) they are immune from suit under the Emergency Act, requiring dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure, lack of personal jurisdiction under Rule 12(b)(2), and failure to state a claim for relief under Rule 12(b)(6); and (2) the complaint was noncompliant with Rule 9(j) on its face. Defendants argued that allowing the case to move forward would contravene the purpose of immunity outlined in the Emergency Act. Defendants contended that the immunity applied because (1) the health care services at issue were rendered during the pandemic, (2) the arrangement and provision of the health care services were impacted by the pandemic, and (3) Ms. Land did not allege that defendants acted in bad faith.
On October 27, 2022, the trial court denied defendants’ motions, and defendants timely appealed to the Court of Appeals. On April 21, 2023, Ms. Land filed a motion to dismiss defendants’ appeal on the grounds that the appeal is interlocutory and does not implicate a substantial right. The Court of Appeals ultimately affirmed the trial court’s order denying defendants’ motion to dismiss.
Appeal of an Interlocutory Order
When a trial court makes a ruling on motions prior to the disposing of all claims, such as a ruling on a motion to dismiss, that ruling is an “interlocutory order.” N.C.G.S. § 1A-1, Rule 54(a) (2023). The general rule is that there is no right of immediate appeal from interlocutory orders and judgments. The party wishing to appeal the interlocutory order must wait until there has been a final judgment in the case before the interlocutory order may be appealed. The purpose for this rule is to forestall the useless delay inseparable from unlimited fragmentary appeals, and to enable courts to perform their real function, i.e., to administer right and justice without sale, denial, or delay.
Exceptions
However, there are exceptions to the general rule where an interlocutory order is immediately appealable. N.C.G.S. §§ 1-277, 7A-27(a)(3), (b)(3) (2023); N.C.G.S. § 1A-1, Rule 54(b) (2023). The Defendants raised two such exceptions in their appeal to the Supreme Court of North Carolina: those established under N.C.G.S. § 1-277(a) and (b). First, under subsection 1-277(a), an interlocutory order is immediately appealable if it would impair a party’s substantial right absent such review. Second, under subsection 1-277(b), an appellate court may review orders that rule adversely upon the court’s jurisdiction over a party’s person or property.
The Supreme Court of North Carolina held in its October 17, 2025 Opinion: “We conclude that defendants fail to satisfy either avenue for appellate review. Therefore, the trial court’s interlocutory order was not immediately appealable and the Court of Appeals did not have jurisdiction to review the matter. We thus vacate the Court of Appeals’ judgment and remand for further proceedings not inconsistent with this opinion.”
The Supreme Court of North Carolina explained: “Immunity under the Emergency Act, however, offers conditional statutory protection for defendants not from the burden of being dragged into court to defend themselves but “from any civil liability” for harm or damages contingent on specific pandemic-related circumstances. N.C.G.S. § 90-21.133(a) … The denial of defendants’ motions here does not foreclose their ability to raise their immunity defense at summary judgment, trial, or in a later appeal after a final judgment … Thus, any perceived injury from the denial of their motions could be remedied later in the trial proceeding or on appeal, precluding the need for interlocutory review … the Emergency Act, which provides qualifying parties with immunity from civil liability, does not provide immunity from suit. Thus, the Court of Appeals erred in exercising appellate review under section 1-277.”
The Supreme Court of North Carolina concluded: “We hold that the Court of Appeals erred in exercising appellate jurisdiction over defendants’ appeal. Appellate review of an interlocutory order is appropriate when that order affects a substantial right that may be lost if review is delayed until after a final judgment … The denial of a motion to dismiss on statutory immunity grounds can implicate such a substantial right, but only where the statute creates an immunity
from suit, as opposed to immunity from liability. Appellate review of an interlocutory order is also appropriate under N.C.G.S. § 1-277(b) if a party intends to challenge an adverse trial court ruling concerning personal jurisdiction. As we established in Love, subsection 1-277(b) only applies to personal jurisdiction and we have construed exceptions to the rule limiting immediate appealability of interlocutory orders narrowly. Neither of defendants’ motions to dismiss under Rule 12(b)(2) or Rule 12(b)(6) are immediately appealable. Accordingly, we vacate the Court of Appeals’ judgment and remand for further remand to the trial court for further proceedings not inconsistent with this opinion,”
Source Land v. Whitley, M.D., No. 71PA24.
If you or a loved one may have been harmed as a result of medical malpractice in North Carolina or in another U.S. state, you should promptly find a North Carolina medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.
