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AMVETS officially supports ‘Tally Bill’ in Congress addressing VA malpractice loophole

Brian Tally meeting with Rep. Dave Brat. (Photo courtesy of Brian Tally).
November 30, 2018

One of the United States’ leading veteran advocacy groups has just lent their support to a Marine’s VA medical malpractice bill.

The 75-year-old veterans organization American Veterans (AMVETS) penned a letter on Wednesday voicing their support for H.R. 7105, the “Brian Tally VA Medical Care and Liability Improvement Act,” also known as “The Tally Bill.”

“We believe passage of this law will address the longstanding problem of breached due process for veterans who suffer disability, as well as survivors who lose loved ones, due to medical malpractice or negligence on the part of the Department of Veterans Affairs independent contractors,” said Joseph Chenelly, AMVETS National Executive Director, in the letter.

The bill is spurred by former Marine Brian Tally, who suffered devastating permanent injuries resulting from a misdiagnosis by a VA independent contractor. He sought out to close the VA contractor loophole that affords them with immunity from medical malpractice claims.

Tally met with dozens of members of Congress in September, not relenting until he found support for his bill. He found support when Republican Rep. Dave Brat joined Tally’s effort and introduced the bill to the House of Representatives last month.

Republican Reps. Barbara Comstock, Amata Coleman Radewagen and Jenniffer Gonzalez-Colon have joined as cosponsors so far. However, the Tally Bill still has a long way to go to garner the support it needs to achieve a vote.

A few weeks ago, Tally reached out to Sherman Gillums Jr., Chief Advocacy Officer at AMVETS, who is also a fellow Marine and suffered his own disabling injury. He hoped that AMVETS would realize the importance of the bill and its impact on all veterans.

After speaking with Gillums, “He was immediately engaged,” Tally told American Military News.

“I advised [Tally] to consider appealing to Congress to pass legislation,” Gillums told American Military News. “Like a good Marine, he was 10 steps ahead of me, though. He then sent me the draft bill he’d already been working on.”

As a veteran advocate, Gillums is all too familiar with VA malpractice and medical errors devastating the lives of veterans. He said Tally’s case reminded him of other veterans he has represented, and he felt compelled to reach out to AMVETS leadership.

“They were unequivocal in their desire to support,” he said.

“I’m absolutely honored that AMVETS and Mr. Gillums saw the need for legislative correction, and is now a partner in playing a monumental role in changing a 72-year legal loophole that has destroyed so many lives,” Tally said.

“This endorsement and support is just as important as the original bill being introduced. With strong VSO support like AMVETS we will see to it that #HR7105 passes and will soon provide a safeguard for all veterans who use the VA,” Tally added.

“Most veterans don’t stand a chance of being made whole after suffering an avoidable medical injury, mainly because information on their options wasn’t readily available until it was too late,” Gillums said.

This was precisely the issue in Tally’s case.

The misdiagnosis resulted in doctors missing a bone-eating staph infection that destroyed his spine and nerves, and left him with a host of other health issues that will prescribe a future of pain and more surgeries that won’t be able to fix him.

Tally followed the usual procedures to file a claim with the VA for damages caused by the misdiagnosis. The progress was strung along, all while VA attorneys admitted 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. Tally’s claim was denied on a technicality because the doctor who provided the misdiagnosis was an independent contractor – indistinguishable from other VA staff, and immune to litigation after California’s one-year statute of limitations expired.

His hopes of compensation for the irreparable damage were shattered, leaving him with no option for recourse.

“It becomes a shell game when victims of medical malpractice are led to believe they are dealing with a federal employee, only to find out later an independent contractor committed the offense,” Chenelly said in his letter. “When this happens, the independent contractor’s status as a non-agent of the government deceptively immunizes the government from liability, leaving veterans or survivors with no recourse.”

“The statute of limitations in these cases are pretty unforgiving, even if an investigation was perhaps deliberately prolonged. Or worse, their due process rights were undermined by the fact that the federal tort claims process favors lawyers who are adept at protecting the government with legal tactics such as stalling talks or intimidating veterans who may not have full knowledge of their rights under the law,” Gillums explained.

Gillums said thousands of cases surface each year involving veterans who have been injured as a result of VA failures. He noted that “legal loopholes or ‘qualified’ admissions of error” prevent fair cases, even despite VA’s admission of fault.

The Tally Bill strives to alter the process by implementing several changes, according to Rep. Brat:

  • Adds independent contractors who provide health care or treatment at VA facilities to the definition of “employee” for the purposes of the Federal Tort Claims Act.
  • Requires termination of independent contractors who commit three negligent acts within five years.
  • Requires the VA to notify state medical boards when a veteran wins a case against a VA provider.
  • Notifies veterans of how to start a claim and important filing deadlines.
  • Institutes mandatory disciplinary procedures for VA employees who commit three negligent acts within five years.

“This bill, if passed, will ensure greater accountability and transparency in the delivery of healthcare to veterans in cases where independent contractors are responsible for causing undue harm to our Nation’s veterans in the course of that care,” Chenelly said in his letter.

“Brian experienced injustice at the hands of an independent contractor, and due to a public policy loophole he was never able to be fully compensated for his injuries. This is wrong, and my legislation would ensure it does not happen to veterans in the future,” Brat said in a statement last month.

Tally said he and his legislative team are coordinating with Brat’s office to reach out to other veteran organizations in hopes of garnering additional support.

“All I want is action. I know it’s too late for me,” Tally said. “We’re doing this for accountability and action. If you screw up, you’ll be held accountable.”