The Healthcare Defender

When a medical outcome doesn't go as planned, healthcare providers often want to say something — to acknowledge a complication, express empathy, or even apologize. But for years, the concern was that any such statement could later be used as an admission of liability in a malpractice case.

In response to this dilemma, many states have enacted “apology laws” — statutes designed to encourage open communication between providers and patients after adverse events, without fear that such expressions will be used against them in court. West Virginia is one of those states. But the question remains: Do these laws really protect providers in litigation, and do they accomplish their intended purpose?

What Does West Virginia’s Apology Law Say?

West Virginia’s apology statute is codified at W. Va. Code § 55-7-11a. It provides in relevant part:

“No statement, affirmation, gesture or conduct expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence made by a health care provider… shall be admissible as evidence of liability in any civil action.”

This law is intended to allow physicians and other healthcare professionals to communicate humanely with patients and families following an unexpected outcome, without that communication becoming ammunition in future litigation.

What Is Protected — And What Isn’t?

West Virginia’s law offers limited protection. Importantly, it protects expressions of empathy but not admissions of fault.  This means a physician may say, “I’m so sorry this happened. I know this is difficult,” without legal consequence — but if they add, “It was my mistake,” that portion may be admissible.  Defense counsel must be vigilant in parsing the language used by providers post-event, as even subtle implications of error can erode the protections of the statute.

How Have West Virginia Courts Applied the Law?

There is limited published case law interpreting § 55-7-11a directly. However, courts in other jurisdictions with similar statutes have routinely drawn a line between empathy and admissions of fault, allowing the latter into evidence.

In West Virginia, trial courts have largely honored the statute in motions in limine and evidentiary rulings when appropriately invoked. However, plaintiff’s counsel may attempt to blur the distinction, particularly in emotionally charged cases or when the provider’s statements are ambiguous.

For instance, a provider who says, “I should have caught that on the scan — I’m sorry,” risks that a court may deem this a statement of fault, not just empathy.

Practical Guidance for Providers and Risk Managers

1. Train providers on compliant communication post-event. Focus on empathy without attributing fault.
2. Document carefully — avoid editorializing or speculating in chart entries or post-incident reports.
3. Engage legal or risk management early if a provider has made a potentially problematic statement.
4. Use statutory language when filing motions in limine to exclude protected statements at trial under § 55-7-11a.

Apology laws in West Virginia reflect an important step toward open communication in healthcare. But they are not a shield against liability if a provider admits fault, even unintentionally. Healthcare organizations must ensure their teams understand the limits of these protections — and how to communicate with empathy and precision in the moments that matter most. If you have questions about the role of apology laws in Medical Malpractice Litigation, contact our our Medical Malpractice Defense team for further guidance.