Land v. Whitley, et al.
|Case Link||View Now|
|Attorney for the Case||Bruce Berger MaryAnne Hamilton|
|Amicus Brief Writers||Elizabeth Todd Matthew Berthold Jenny Maynard|
|Court||NC Court of Appeals|
Plaintiffs filed suit for medical malpractice which occurred during the COVID-19 state of emergency. Defendants moved to dismiss the complaint under the Health Care Liability Protection for Emergency or Disaster Act (“EDTPA”). The trial court denied the motion to dismiss, and Defendants appealed.
NCAJ filed an amicus brief which clarified the proper procedures and standards under the EDTPA. The limited, qualified immunity provided by the Act is an affirmative defense. Accordingly, any defendant wishing to take advantage of this qualified immunity must prove all three elements set forth in the statute, including, critically, that the health care in question was directly or indirectly affected by COVID-19. As the burden is on the defense to prove these elements, dismissal pursuant to Rule 12 would not be proper. Moreover, the Act specifically excludes claims for gross negligence. Therefore, no dismissal is proper where gross negligence is adequately pled. Finally, the interlocutory denial of the motion to dismiss pursuant to the EDTPA does not affect a substantial right, and the appeal should be dismissed.