Dear Jeff,

Thank you for your active participation in pursuing your mother's 
legal claims concerning the circumstances of your father's death.
There are a number of considerations of which you should be aware
as you proceed and which you might want to discuss with the lawyers 
who advise you.

1. There is no evidence that your father was injured by the fall at 
JMH, and naming JMH as a defendant may cause the Court to assign
taxable costs, to allow attorneys' fees and to allow counter-claims
by JMH, which might amount to tens of thousands of dollars (or more)
and bankrupt your mother.

2. Naming, as has been suggested, the attending physician who cannot 
be deemed responsible in any way as a defendant, would carry the same risks at #1. above.

3. Valley Health Care Center threatens to defend itself with claims
of "contributory negligence" by your mother, who was the last person
to see your father conscious and upright. Valley will have numerous
witnesses to testify that they routinely assisted Herman to get up
from a sitting position, because Herman needed such assistance,
because he found it difficult or impossible to get up by himself. 
The lawyer for Valley will then argue that your mother is not 
telling the truth, that Herman was up and trying to walk around 
when she left him, or that when she left him, he was already lying 
on the floor, perhaps unconscious and that your mother was so 
frightened that she could not admit that fact to herself. I don't 
believe that to be true, but it's the lawyer's professional duty to 
invent stories which he doesn't believe. And from the lawyers for 
Valley, you must expect the worst. 

4. Physicians like myself understand that the line between civil
and criminal liability is thin and sometimes obscure, and Valleys'
defense of contributory negligence can set the stage for charges
of criminal negligence or worse, the bringing of which as you know
is at the discretion of public prosecutors. By persuading your
mother to sue Valley, you are setting her up to be blackmailed
by all persons, including her own lawyers, who have knowledge
of the details of the case.

5. Risks of criminal prosecution aside, Virginia law requires that
only the personal representative, i.e. administrator or executor of
Herman's estate can bring a lawsuit for wrongful death. Virginia
law immunizes the personal representative from damages. I am not
sure whether life-time gifts which under the laws of some states 
are treated as part of the Estate can be recovered as damages for
wrongful wrongful death litigation; nor do I know at what point in
time the distribution of an estate is final and serves to 
extinguish the estate. Arguably, once an estate has been distributed
it no longer exists. Virginia law sets a two year statute of 
limitation on the filing of wrongful death actions. It does not
prohibit such actions after an estate has been distributed. Whether
it permits recovery of damages from beneficiaries of an estate
for liabilities that arise after the distribution I don't know.

6. But what I do know is that in Massachusetts at least, judges
pay so little attention to the law that it seems hardly worthwhile
to find out what the law is, since they set it aside at their whim.
I can't escape the conclusion that when you go to court you 
subject yourself to arbitrary and unpredictable decisions.

I wish you and your mother the best.

Jochen Meyer