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US Marine vet’s malpractice claim denied due to VA loophole – Now he’s on a mission to change the law

Brian Tally, Marine veteran. (Photo courtesy of Brian Tally)
July 13, 2018

Brian Tally hadn’t suffered from a fall or any trauma before being afflicted by sudden excruciating back pain in January 2016.

Tally was a healthy and active 38-year-old; a busy husband and father of four with a successful landscaping business in California.

He woke one day with severe pain levels, and night sweats that would completely soak his bed. He soon found himself unable to walk, spending hours on the bathroom floor crying for relief.

After multiple calls to his primary doctor and no success in getting an appointment, Tally’s wife rushed him to the nearest VA emergency room. He described his pain levels as a 10 out of 10.

While in the ER, Tally never saw a doctor. A nurse handled everything from triage, to diagnosis, and release. He was sent home with medications after an X-ray showed only a “lumbar strain.” A second visit just days later yielded the same outcome.

“They said I sprained my lower back, but I had no trauma. I didn’t fall. I tried to explain to them that there was no reason that I should’ve had a sprained back,” Tally recently told American Military News. The ER refused to do an MRI.

His condition worsened to the point where he relied on a walker to move, and was barely functional between the pain, weakness and atrophy to his body, and the side effects from medications. He was living in a chair and urinating in a bucket.

Brian Tally using a walker after his catastrophic spinal condition. (Brian Tally/GoFundMe)

When his primary doctor finally saw him, he still didn’t receive more than medications and a reminder of the negative X-ray findings. He was told an MRI wasn’t needed.

He’d lost 40 pounds in the first three weeks, and that wasn’t enough to signal a problem to medical professionals. He was taking 25 to 30 pills a day, which only knocked him out and made him indifferent to the pain, but never took it away.

Tally’s wife had enough of the runaround. She drove Tally to a private imaging provider where the couple paid more than $500 for an MRI at their own expense. They sent the results to Tally’s primary doctor, as well as the hospital orthopedist, who advised Tally that he needed surgery.

The next available surgery date was nine months away.

Tally turned to Veteran’s Choice enrollment and was able to meet with an outside provider. He was scheduled for surgery just a month later.

Upon seeing Tally’s spine, the surgeon had to halt the operation.

“He said my spine had been moth-eaten,” Tally said.

An infectious disease doctor was called in to finish the surgery and remove part of Tally’s lower spine and tissue.

“They thought I had cancer,” he said.

The tests revealed Tally had a “bone-eating staph infection” that was eating away his spine, disc and tissue. It was the cause of all his pain and life-altering symptoms.

“I was being eaten alive, and they masked it with pills,” he said.

Brian Tally was taking 25 to 30 pills a day with no relief. (Brian Tally/GoFundMe)

Tally was released a week after surgery with a PICC line through which his wife administered daily antibiotics. The infection was so strong in his body that it took four months of antibiotics given three times a day for the infection to finally clear up.

“I already had several doctors tell me that they’re surprised I lived through it. They say that typically if you get a bone-eating staph infection in your spine, you won’t make it past a few weeks. I survived over four months,” he said.

Months of agony, deterioration and permanent damage to Tally’s body could have been avoided with a blood test in the VA ER.

Tally filed a Standard Form 95 to file a claim with the VA for damages caused by the misdiagnosis.

He began receiving calls from VA attorneys admitting the VA’s failure to meet the standard of care. They issued apologies and promised to settle the claim.

A year later, they were approaching a settlement when the unexpected happened.

“They denied our claim on a technicality, and employment status of the doctor that misdiagnosed me and neglected me,” Tally said.

Tally soon discovered that the Federal Tort Claims Act (FTCA) established in 1946 mandates compensation for those who suffered injury due to negligence or malpractice of federal employees. However, the law doesn’t cover independent contractors working for the VA.

Tally’s primary care doctor was an independent contractor, indistinguishable from other VA staff, and immune to litigation after California’s one-year statute of limitations expired.

He went from living for the hope of compensation for the irreparable damage, to being left with nothing.

“It’s criminal,” he said. “They’ve ruined my life.”

“They’re hiding behind a law that was written 72 years ago,” Tally said.

He added that they do it to “deflect liability” onto independent contractors.

Tally is left permanently disabled with devastating effects on his body, for which he’ll need numerous other procedures and surgeries.

“I’ve got the three diseases now in my spine. I’ve got six herniated discs in my neck. My whole spine has been compromised,” he explained.

The physical damage extended to his kidney and bladder, stomach problems, and such severe atrophy in one leg that he walks with a gimp that further damages his spine. He’s also left with anxiety and depression over the permanent changes in his life.

“The only thing that’s kept me going is my family,” Tally said.

Tally will be unable to work for the rest of his life.

He created a GoFundMe in an attempt to raise some funds to alleviate some of the financial strain on his family.

Tally’s doctor was found guilty of neglect and malpractice by three VA experts, yet the doctor is still contracted by the VA hospital. The doctor is one of more than 120 independent contractors at the VA Loma Linda.

Instead of continuing the legal battle, Tally and his lawyer, Glen Sturtevant, have channeled their efforts into changing the law.

The two have begun to plan a proposal for The Tally Bill, which would require all VA workers to identify on their badges whether they are employees or independent contractors.

Tally said it’s now become his mission to change the law and help other veterans.

He hopes to become a voice in the veteran community.

“It’s not about me,” Tally said. “I can’t benefit from this.”

“I’m here to raise awareness and to let the world know my story and what I want to do to make positive change out of something that has been so destructive to my family and I,” he added.

Sturtevant, who is a former Senator from Virginia, has begun to lobby for The Tally Bill, along with Rep. Duncan Hunter, who is also a veteran. Tally has been invited to speak in Washington later this year to begin lobbying for his bill.

“Congress needs to hear my story,” Tally said.

He has faith that Congress will do the right thing and pass the bill.

“This is all for the future veterans, and the veterans right now that could be facing the same battles,” he said. With the little energy he has left, he hopes to change the future for veterans.

“I have to do what I can to change this law so it never happens again to another veteran,” Tally said.