EDTPA Immunity Is Immunity from Liability, Not Suit—No Immediate Appeal Under N.C.G.S. § 1‑277(a) or (b)

Introduction

In Land v. Whitley (Supreme Court of North Carolina, Oct. 17, 2025), the Court clarified a pivotal appellate-jurisdiction question arising from the COVID‑19 Emergency or Disaster Treatment Protection Act (EDTPA), N.C.G.S. §§ 90‑21.130 to ‑21.134. Defendants—an OB/GYN, her practice, and two hospital entities—sought immediate appellate review after the trial court denied their motions to dismiss a medical-malpractice suit based on EDTPA immunity. The Court of Appeals entertained the interlocutory appeal and affirmed the denial. The Supreme Court vacated, holding that EDTPA confers immunity from civil liability rather than immunity from suit. As a result, a denial of dismissal premised on EDTPA does not trigger the “substantial right” exception to the general bar on interlocutory appeals under N.C.G.S. § 1‑277(a), nor does it fit the narrow personal-jurisdiction exception under § 1‑277(b).

This decision establishes an important jurisdictional rule for North Carolina litigation: where a statute’s text grants an immunity from liability (not from suit), the denial of a motion to dismiss invoking that statute is not immediately appealable. The Court also reaffirmed a narrow construction of § 1‑277(b), limiting that immediate-appeal pathway to traditional personal-jurisdiction (minimum-contacts) disputes—not to statutory immunities repackaged as personal-jurisdiction challenges.

Background

Plaintiff Doris Land underwent gynecological care amid the early COVID‑19 pandemic. After a hysterectomy in June 2020, she developed severe postoperative complications, including infection, peritonitis, and pulmonary emboli, ultimately requiring emergency surgery and prolonged recovery. She and her husband sued the treating physician and affiliated facilities for negligence and gross negligence. Defendants moved to dismiss under Rules 12(b)(1), (2), and (6), arguing, in relevant part, that EDTPA immunity barred the suit and that the complaint was deficient under Rule 9(j).

The trial court denied dismissal. Defendants appealed immediately. The Court of Appeals exercised jurisdiction and affirmed the denial, reasoning that EDTPA’s elements were not satisfied on the pleadings. The Supreme Court allowed discretionary review on three EDTPA merits questions (causation linkage to COVID‑19, proof of good faith, and the effect of a gross-negligence allegation), but ultimately concluded that the Court of Appeals lacked jurisdiction to hear the interlocutory appeal at all.

Summary of the Opinion

• The Court vacated the Court of Appeals’ decision and remanded because the denial of defendants’ motions to dismiss was an interlocutory order not immediately appealable.
• EDTPA (N.C.G.S. § 90‑21.133(a)) affords “immunity from any civil liability” based on pandemic-impacted health care rendered in good faith. By its terms, that is an immunity from liability, not an immunity from suit.
• Only immunities from suit (e.g., sovereign/governmental immunity; certain exclusive-remedy schemes) create a substantial right that is effectively lost if immediate appeal is denied. EDTPA does not fall in that category and therefore does not support interlocutory review under § 1‑277(a).
• N.C.G.S. § 1‑277(b) permits immediate appeal of adverse rulings on personal jurisdiction over a defendant or property. The Court reaffirmed a narrow reading of this provision, limiting it to minimum-contacts questions. EDTPA is not a personal-jurisdiction doctrine, and invoking EDTPA does not strip courts of jurisdiction.
• Because the Court lacked jurisdiction to reach the merits, it did not address the three EDTPA interpretive questions presented.

Detailed Analysis

Precedents Cited and Their Influence

• Veazey v. City of Durham, 231 N.C. 357 (1950); Goldston v. American Motors Corp., 326 N.C. 723 (1990); Turner v. Hammocks Beach Corp., 363 N.C. 555 (2009); Sharpe v. Worland, 351 N.C. 159 (1999): These cases establish and explain the default rule: interlocutory orders—orders entered during the pendency of an action that do not dispose of all claims—are not immediately appealable, in order to prevent piecemeal litigation and delay.
• N.C.G.S. §§ 1‑277(a) and 7A‑27(b)(3): Define the “substantial right” exception that can permit immediate appeal of certain interlocutory orders. The Court reiterates that this exception is construed narrowly and is fact- and context-dependent.
• Fisher v. Flue‑Cured Tobacco Coop. Stabilization Corp., 369 N.C. 202 (2016); Hanesbrands Inc. v. Fowler, 369 N.C. 216 (2016); Waters v. Qualified Personnel, 294 N.C. 200 (1978): These decisions articulate the test for the substantial-right exception—identifying rights that will be lost if not reviewed before final judgment.
• Craig v. New Hanover County Board of Education, 363 N.C. 334 (2009); Corum v. University of North Carolina, 330 N.C. 761 (1992); Mitchell v. Forsyth, 472 U.S. 511 (1985): The Court uses these authorities to distinguish “immunity from suit” (which protects against being haled into court and is effectively lost if litigation proceeds) from a “mere defense to liability.” The former supports immediate appeal; the latter does not.
• State v. Kinston Charter Academy, 379 N.C. 560 (2021): Confirms the nature and scope of sovereign/governmental immunity as immunity from suit for governmental functions absent waiver—again, a category that can support immediate appeal.
• Hamby v. Profile Products, L.L.C., 361 N.C. 630 (2007): Illustrates statutory exclusivity under the Workers’ Compensation Act—an immunity from suit for common-law tort claims within the Act’s scope—supporting immediate appeal when denied.
• Burton v. Phoenix Fabricators & Erectors, Inc., 362 N.C. 352 (2008) (order), and 194 N.C. App. 779 (2009): Cited by defendants, but distinguished. Burton involved a statutory exclusive-remedy (workers’ compensation) that categorically barred suit—an immunity from suit. EDTPA, by contrast, is fact-dependent and textually limited to immunity from liability.
• Love v. Moore, 305 N.C. 575 (1982); Teachy v. Coble Dairies, Inc., 306 N.C. 324 (1982): The Court draws on Love to construe § 1‑277(b) narrowly—immediate appeals on personal jurisdiction target minimum-contacts rulings. Teachy reflects the Court’s caution around conflating immunity issues with personal jurisdiction.
• Wake County v. Hotels.com, L.P., 235 N.C. App. 633, 649 (2014): Even after denial of a Rule 12(b)(6) motion, a defendant may later seek summary judgment. This supports the Court’s conclusion that any error in denying EDTPA dismissal can be addressed later without immediate appeal.

Legal Reasoning

The Court’s reasoning proceeds in two steps, one textual and one jurisdictional:

1. Textual characterization of EDTPA immunity: The statute provides that qualifying health-care providers (and entities vicariously responsible for them) “shall have immunity from any civil liability” for harms resulting from acts or omissions in arranging for or providing health care services affected, directly or indirectly, by the COVID‑19 pandemic, so long as the provider acted in good faith (N.C.G.S. § 90‑21.133(a)). The Court reads this language as creating a defense to civil liability and not as a categorical bar to being sued. That reading is reinforced by the statute’s fact-intensive qualifiers—pandemic impact and good faith—which anticipate evidentiary development rather than a threshold jurisdictional gatekeeping function.
2. Application to interlocutory-appeal pathways:
   • Substantial right (§ 1‑277(a)): Only immunities from suit—those that protect a party from the burdens of litigation itself—trigger a substantial right that is irreparably lost absent immediate review. Because EDTPA confers immunity from liability, defendants can fully vindicate that defense later (e.g., at summary judgment, trial, or on appeal after final judgment). No immediate appeal lies.
   • Personal jurisdiction (§ 1‑277(b)): The Court adheres to the narrow “minimum contacts” understanding of § 1‑277(b). EDTPA does not divest courts of jurisdiction over a defendant’s person or property and is not a personal-jurisdiction doctrine. Recasting EDTPA as a jurisdictional bar under Rule 12(b)(2) does not transform the issue into one immediately appealable under § 1‑277(b).

Because neither exception applies, the Court holds that the Court of Appeals lacked jurisdiction to review the interlocutory order. It vacates the judgment below and remands to the trial court for further proceedings. Having found no jurisdiction to reach the merits, the Court declines to answer the three substantive EDTPA questions on which it had granted discretionary review.

Impact and Forward-Looking Consequences

• Immediate appeals in EDTPA cases curtailed: Parties invoking EDTPA cannot immediately appeal a denial of Rule 12(b)(2) or 12(b)(6) dismissal on the theory that EDTPA immunity “affects a substantial right” or strips personal jurisdiction. The defense must be litigated through discovery and resolved at summary judgment or trial, with any appellate review occurring after final judgment.
• Statutory-immunity taxonomy matters: North Carolina appellate courts will distinguish sharply between:
  • Immunity from suit (e.g., sovereign/governmental immunity; exclusive-remedy schemes), which can support interlocutory appeal when denied; and
  • Immunity from liability (e.g., EDTPA), which functions as a merits defense and does not support interlocutory appeal.
• Narrowing of § 1‑277(b): The Court reaffirms that § 1‑277(b) applies to adverse rulings on personal jurisdiction in the classic due-process sense (minimum contacts). Attempts to reframe merits defenses (like statutory immunity) as personal-jurisdiction objections to gain immediate appeal will fail.
• Practical effect on health-care litigation: Health-care defendants facing COVID‑era claims should anticipate discovery on EDTPA’s fact-bound elements—pandemic impact on care and good faith—and be prepared to seek summary judgment rather than rely on early dismissal or interlocutory appeal.
• Vacatur of the Court of Appeals’ merits analysis: Because the Court of Appeals lacked jurisdiction, its merits discussion—including its reading of EDTPA’s elements and application to the pleadings—has no precedential effect. EDTPA’s contours (causal linkage to pandemic impacts, the role of “good faith” at the pleading stage, and the significance of a gross-negligence allegation) remain open at the Supreme Court level.
• Appellate strategy recalibration: Defendants should preserve EDTPA defenses, build a factual record, and plan for post-judgment appellate review. Rule 54(b) certification remains theoretically available for final judgments disposing of fewer than all claims or parties, but routine denials of motions to dismiss are unlikely candidates for certification.

Complex Concepts Simplified

• Interlocutory order: An order entered while a case is still ongoing that does not resolve all claims. The default rule forbids immediate appeals from such orders to prevent piecemeal litigation.
• Substantial-right exception (N.C.G.S. § 1‑277(a)): A narrow safety valve allowing immediate appeal where delaying review would irreparably harm a legally protected interest that cannot be fully redressed after final judgment. Immunity from suit typically qualifies; defenses to liability typically do not.
• Immunity from suit vs. immunity from liability:
  • Immunity from suit protects a party from litigating at all (e.g., sovereign immunity). If wrongly denied, it is “effectively lost” once litigation proceeds—justifying immediate appeal.
  • Immunity from liability is a defense that, if successful, prevents judgment against a party but does not spare them the burdens of litigation. It can be vindicated later, so immediate appeal is unnecessary.
• Personal jurisdiction and § 1‑277(b): Personal jurisdiction concerns whether a court can exercise power over a defendant consistent with due process, typically analyzed through “minimum contacts” with the forum state. Immediate appeal under § 1‑277(b) is reserved for rulings on that jurisdictional question—not for merits defenses.
• EDTPA basics (N.C.G.S. § 90‑21.133(a)):
  • Grants immunity from civil liability for harms allegedly resulting from acts/omissions in arranging or providing health care during the COVID‑19 emergency, when care was affected by the pandemic, and the provider acted in good faith.
  • Carveout: No immunity for gross negligence.
  • Operates as a fact-dependent defense, not as a categorical bar to being sued.

Practice Pointers

• For defendants:
  • Plead EDTPA immunity distinctly and early, but prepare to prove the pandemic’s impact on care and good faith with evidence. Expect discovery.
  • After a Rule 12(b)(6) denial, consider a targeted summary-judgment motion once a record exists. Preserve objections for appeal after final judgment.
  • Do not rely on Rule 12(b)(2) or § 1‑277(b) to secure immediate review of EDTPA issues; the Supreme Court has foreclosed that path.
• For plaintiffs:
  • Anticipate EDTPA defenses and plead facts bearing on gross negligence and the absence of good faith, as appropriate. But note that the Supreme Court left open whether EDTPA requires plaintiffs to plead lack of good faith.
  • Seek discovery on how pandemic conditions actually affected defendants’ care decisions and resources.
• For trial courts:
  • Recognize EDTPA as a liability defense that often requires factual development. Denials of early dismissal generally will not be immediately appealable.
  • Build a clear record on EDTPA’s factual predicates to facilitate eventual summary-judgment or post-judgment appellate review.

Unanswered EDTPA Questions (Reserved)

Because the Supreme Court disposed of the case on jurisdictional grounds, it did not answer the three substantive questions on which it granted discretionary review:

• Whether EDTPA requires a causal link between COVID‑19 and the alleged negligence.
• Whether a defendant must prove “good faith” to obtain dismissal when the complaint does not allege “bad faith.”
• Whether a complaint’s bare allegation of gross negligence defeats dismissal under EDTPA.

These issues remain live for future appellate resolution and should be carefully preserved in trial courts.

Conclusion

Land v. Whitley sets a clear jurisdictional marker in North Carolina: EDTPA’s “immunity from any civil liability” is not immunity from suit. Denials of Rule 12(b)(2) and 12(b)(6) motions invoking EDTPA are not immediately appealable under either the substantial-right exception in § 1‑277(a) or the personal-jurisdiction exception in § 1‑277(b). The Court’s textual approach aligns statutory wording with interlocutory-appeal doctrine and reaffirms that exceptions to the final-judgment rule are to be narrowly construed.

Practically, EDTPA defenses will be litigated in the trial courts on evidentiary records—often at summary judgment—rather than resolved via early appeals. The decision preserves judicial efficiency by curbing fragmentary appeals and ensures that appellate review of EDTPA issues, when it occurs, will be grounded in developed facts. At the same time, the opinion leaves open significant EDTPA merits questions for another day, signaling that the statute’s substantive contours remain to be refined through future cases.