Health Care Providers Should Dust Off Preserved COVID Immunity Defenses After the North Carolina Supreme Court Vacated Unfavorable Covid Immunity Decision
Christy C. Dunn, Young Moore and Henderson, P.A.
In October 2025, the North Carolina Supreme Court vacated the Court of Appeals decision in Land v. Whitley, 292 N.C. App. 244 (2024) that affirmed the trial court’s denial of immunity from civil liability to health care providers during COVID-19 under the Emergency or Disaster Treatment Protection Act. Land v. Whitley, 920 S.E.2d 823 (N.C. 2025). Now that the only controlling appellate decision construing the Act (which was unfavorable to defendants) is gone, health care providers that have preserved this immunity defense but have not yet asserted it in active litigation should reconsider whether and when to do so.
Ms. Land received medical care from the defendants between June and August 2020, during the COVID-19 pandemic. In February 2022, she and her husband filed a complaint against her doctor, the physicians’ group, and the hospital, alleging negligence and gross negligence arising from complications following a hysterectomy.
The defendants filed motions to dismiss the complaint on grounds that they were entitled to immunity under Emergency or Disaster Treatment Protection Act, which was passed unanimously by the North Carolina General Assembly in May 2020. Specifically, the defendants moved to dismiss the complaint under North Carolina Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, and 12(b)(6) for the plaintiff’s failure to state a claim upon which relief may be granted.
The trial court denied the defendants’ motions to dismiss, and the defendants appealed. The plaintiffs moved to dismiss the appeal, arguing that the order was an interlocutory order that was not immediately appealable. The Court of Appeals denied the motion to dismiss the appeal, heard oral arguments on the issues presented, and later issued an opinion affirming the trial court’s order denying the defendants’ motions to dismiss the complaint. The Court of Appeals held that the defendants failed to establish a sufficient causal link between the impact of the COVID-19 pandemic and Ms. Land’s surgery and follow-up care, and therefore the defendants were not entitled to the statutory immunity. The Court of Appeals also held that the plaintiffs adequately pleaded gross negligence by alleging failures by the defendants during the surgery and follow-up care.
The defendants and their amici petitioned the North Carolina Supreme Court for discretionary review of the Court of Appeals decision, which the Supreme Court granted. In the amicus briefs that I authored on behalf of North Carolina’s long-term care facilities supporting the petition for discretionary review and supporting the defendants on the merits, we argued that the Court of Appeals erred because (1) the General Assembly intended to grant broad immunity to health care providers who delivered health care during the public health emergency, not to restrict the immunity to liability only for negligence or injuries caused by Covid; and (2) allowing plaintiffs to escape proper pleading standards for gross negligence nullifies the immunity granted by the Act and thwarts other important public policy.
Approximately one year after hearing oral arguments, the Supreme Court issued an opinion on October 17, 2025 vacating the Court of Appeals decision on grounds that the Court of Appeals lacked appellate jurisdiction because the defendants did not have a right to immediately appeal the trial-court order denying their motions to dismiss. The Court explained that because the order was interlocutory (not a final judgment), it was not immediately appealable unless the defendants could establish that the denial of their motions to dismiss affected a substantial right absent appellate review before a final judgment, or that the order was an adverse ruling on personal jurisdiction.
The Court concluded that the defendants failed to make either of these showings, and thus the Court of Appeals erred in exercising appellate review. The Court explained its reasoning that because the Emergency or Disaster Treatment Protection Act granted immunity from liability, and not immunity from suit, “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 Court also disagreed with the defendants’ argument that the trial court’s order was an adverse ruling on personal jurisdiction, explaining that the right to immediate appeal of an adverse ruling on personal jurisdiction is limited to rulings on “minimum contacts” questions, not statutory immunity.
The Supreme Court vacated the Court of Appeals judgment and remanded the case to the trial court for further proceedings not inconsistent with its opinion.
Now that there is no controlling appellate decision construing the Emergency or Disaster Treatment Protection Act unfavorably toward health care providers, defendant health care providers that have preserved this defense in active litigation should consider whether to assert it, especially in cases where the plaintiff has no colorable claim of gross negligence and the assigned medical malpractice judge might be inclined to grant the immunity. Defense counsel should also evaluate the likelihood that your client’s set of facts will stand up on appeal if the trial court grants the immunity and whether those facts might risk making bad law.
