§ 8.01-52.1.Admissibility of expressions of sympathy.

Section 8.01-52.1 protects a category of communication that can otherwise chill a health care provider from expressing sympathy after a patient’s death. In a wrongful death action brought under § 8.01-50 against a health care provider, or in related arbitration or medical malpractice review panel proceedings, statements, writings, or benevolent conduct expressing sympathy, commiseration, condolence, compassion, general benevolence, or an apology — made by the provider or the provider’s agent to a relative or representative of the patient about the death — cannot come into evidence as an admission of liability or an admission against interest. The protection applies where the death followed an unanticipated outcome of health care.

The statute draws a sharp line, though: a statement of fault made as part of, or in addition to, an otherwise protected expression of sympathy is not shielded by this section. Only the sympathy or apology portion is protected; any accompanying acknowledgment of fault remains admissible.

The statute defines its key terms. “Health care” and “health care provider” carry the same meanings given in § 8.01-581.1. “Relative” covers a decedent’s spouse, parent, grandparent, stepparent, child, grandchild, sibling, half-sibling, or spouse’s parents, and also anyone who had a family-type relationship with the decedent. “Representative” means a legal guardian, attorney, a person designated under a medical power of attorney, or anyone else recognized in law or custom as the patient’s agent. And “unanticipated outcome” means a result of health care that differs from what was expected.