31-04-12. Expressions of empathy.

1. A statement, affirmation, gesture, or conduct of a health care provider, or health care provider's employee or agent, which expresses apology, sympathy, commiseration, condolence, compassion, or benevolence to a patient or to a patient's relative or representative is not admissible as evidence of liability or as an admission against interest in a civil action, arbitration proceeding, or administrative hearing regarding the health care provider.

2. For purposes of this section, unless the context otherwise requires: a. "Health care provider" means: (1) An individual licensed or certified by the state to deliver health care; (2) A hospital or clinic, including an ambulatory surgery center or group of physicians operating a clinic or outpatient care facility, or a professional corporation or other professional entity comprised of such health care providers as permitted by the laws of this state; and (3) A nursing, basic, or assisted living facility licensed by this state or by any other health care organization. b. "Relative" means an individual who has a relationship to the patient by marriage, blood, or adoption.

c. 'Representative' means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a health care directive, or any person recognized in law or custom as a patient's agent.