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Marine vet’s malpractice bill targeting the VA enters US House; seeks to close VA contractor loophole

Brian Tally meeting with members of Congress. (Photo Courtesy of Brian Tally)
November 13, 2018

A disabled veteran’s fight to change VA medical malpractice law has finally had a breakthrough – his bill was just introduced in the U.S. House of Representatives.

Former Marine Brian Tally is the driving force behind the “Tally Bill” that was introduced by Rep. Dave Brat last week. H.R. 7105 “Brian Tally VA Medical Care and Liability Improvement Act” seeks to remove VA’s independent contractors’ immunity from medical malpractice claims.

The bill was inspired by Tally’s own devastating experience with the VA.

“If I’m slipping through the cracks, everybody is slipping through the cracks,” Tally told American Military News.

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In January 2016, Tally visited the VA for sudden, debilitating back pain. He was misdiagnosed by an independent contractor and sent home with pain pills that didn’t relieve his pain. When his condition worsened, he paid out of pocket for an MRI – a test the VA refused to do. He took the results to a new doctor using the VA Choice Act, where he finally got an answer.

A “bone-eating staph infection” had eaten away at Tally’s spine, disc and tissue. It could’ve been caught by a blood test or images of his spine, but neither of those were ordered by the VA.

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

Brian Tally using a walker after his catastrophic spinal condition. (Photo courtesy of Brian Tally)

When he tried to file a claim with the VA, he discovered that the doctor who misdiagnosed him was an independent contractor. He could only file a medical malpractice lawsuit against the independent contractor with the state court.

However, by the time he learned of this news, the statute of limitations had expired. Had the doctor been an employee of the VA, Tally would’ve had an additional year to bring a case.

Tally was left with no options of recourse.

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“They claimed responsibility 100 percent and then they just blamed it on some 72-year-old legal loophole,” he said.

“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,” Rep. Brat said in a statement last week.

Tally traveled to Capitol Hill in September, where he met with 30 members of Congress, all of whom supported his bill.

The Tally Bill subjects the VA’s independent contractors to the Federal Tort Claims Act just the way VA employees are.

“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.”

Brian Tally meeting with Rep. Dave Brat. (Photo courtesy of Brian Tally).

Tally’s medical woes aren’t over, but he hopes the bill will ensure independent contractors are held accountable so another veteran doesn’t have to suffer the way he has.

“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 had told American Military News in July.

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.

“Brian’s story is heartrending. This should not have happened to him. And I hope we can make sure it does not happen to anyone else,” Rep. Brat added.

Rep. Brat’s D.C. office did not return a call from American Military News for additional comment by press time. Speaker Paul Ryan’s office could not be reached, as the voice message box was full when calling his D.C. office.