The North Carolina Supreme Court on Friday ruled that a doctor and hospital could not appeal the denial of their motions to dismiss a medical malpractice lawsuit, finding they lacked the legal right to an immediate appeal. The justices vacated the North Carolina Court of Appeals’ prior judgment, which had upheld the lower court’s denial of dismissal.

In a published opinion, the high court determined that Dr. Kori B. Whitley, Physicians East PA, and Pitt County Memorial Hospital Inc. failed to show that their case qualified for any exceptions to the rule restricting interlocutory appeals—appeals filed before a case concludes at the trial level. The court said the challenged order neither affected a substantial right nor involved a jurisdictional question that would justify immediate appellate review.

Background of the Case

The underlying lawsuit was brought by Doris Griffin Land, who alleged medical negligence following a hysterectomy performed by Dr. Whitley to remove precancerous cells. According to court filings, Whitley continued the surgery despite losing visibility of the area she was operating on. Land later developed sepsis, kidney failure, and infection, which she claimed resulted from the doctor’s decision to proceed under those conditions.

Whitley, Physicians East, and Pitt County Memorial Hospital moved to dismiss the suit, arguing they were immune under the Emergency or Disaster Treatment Protection Act, a North Carolina statute enacted during the COVID-19 pandemic. The law shields healthcare providers from liability for acts performed in good faith during the public health emergency, except in cases of gross negligence.

The trial court denied the dismissal, and the defendants appealed. When the Court of Appeals affirmed that ruling, the defendants sought further review from the state’s supreme court, which heard arguments roughly a year ago.

High Court’s Reasoning

The justices declined to consider the defendants’ arguments on the merits, instead ruling that the appeal itself was improper. They explained that the Emergency or Disaster Treatment Protection Act provides only a conditional immunity—a defense against liability—rather than a blanket immunity from litigation.

Because this immunity depends on fact-intensive questions—such as whether the provider acted in good faith or whether the pandemic affected the care—the legislature likely intended for such issues to be resolved during trial or summary judgment, not through early dismissal.

The opinion also rejected the defendants’ contention that the denial of their motion implicated the trial court’s jurisdiction, finding that the immunity at issue does not deprive courts of authority to hear such cases.

“The defendants may still raise the immunity defense at summary judgment, trial, or on appeal after final judgment,” the justices wrote.

Representation and Case Information

Attorneys for the parties could not be reached for comment Friday.

Plaintiff Doris Griffin Land is represented by Bruce W. Berger and MaryAnne M. Hamilton of Miller Law Group PLLC.

Defendants are represented by W. Gregory Merritt of Harris Creech Ward & Blackerby PA, Kelsey Heino of Hall Booth Smith PC, and Matthew W. Sawchak, Erik R. Zimmerman, and Ethan White of Robinson Bradshaw & Hinson PA.

The case is Land et al. v. Whitley et al., Case No. 71PA24, in the North Carolina Supreme Court.