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Congress negotiating Marine vet’s malpractice bill to close VA loophole as ‘Tally Bill’ gains steam

Marine veteran Brian Tally on Capitol Hill. (Photo courtesy of Brian Tally)
December 10, 2020

Marine veteran Brian Tally has been fighting to change Department of Veterans Affairs policy for two-and-a-half-years, and his bill is the closest it has ever been to seeing a Congressional vote.

Tally’s namesake “Tally Bill” seeks to change a 74-year-old legal loophole that shields VA contractors from malpractice. His bill has been introduced in the House and Senate, and is currently among negotiations in both chambers’ Veterans Affairs committees as lawmakers determine which pieces of legislation to vote on before Congress leaves on December 20.

“This is the closest we’ve ever been and I’m confident that Congress will act very soon, pass the bill, and get it over to President Trump’s desk for a signature to put an end to this 74 year VA legal loophole that has destroyed the lives of veterans and their families for generations,” Tally told American Military News.

Brian Tally, Marine veteran. (Photo courtesy of Brian Tally)

Tally’s own life was changed forever in January 2016 when he 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. Using the VA Choice Act, he took the results to a private doctor 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 was ordered by the VA.

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

Tally is left permanently disabled with devastating effects on his spine and nerves, which have subsequently damaged his bladder, bowels, and more. He’ll need numerous other procedures and surgeries to address the physical damage left behind by the experience, but the anxiety and depression he now lives with is another challenge.

“Living with chronic pain is extremely difficult,” Tally said.

When Tally 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. So he set out to promote a bill that would ensure independent contractors are held accountable so another veteran doesn’t have to suffer the way he has.

Marine veteran Brian Tally meeting with members of Congress. (Photo courtesy of Brian Tally)

“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.”

Since 2018, Tally has made four trips to Washington D.C. to meet with lawmakers in search of support for his bill, and has spent more than 11,000 hours advocating for it.

Marine veteran Brian Tally and AMVETS Chief Advocacy Officer Sherman Gillums Jr. meeting with members of Congress. (Photo courtesy of Brian Tally)

“I promised myself I would see this through and that’s what I’m doing,” Tally said. “I didn’t choose this job – it chose me.”

Last month, Sens. Richard Blumenthal (D-CT) and Thom Tillis (R-NC) introduced the Brian Tally VA Employment Transparency Act, the latest iteration of Tally’s bill. The bill would require the VA to provide a recommendation for legal representation, and the VA doctor’s employment status within 30 days of filing a VA claim.

Blumenthal said at the time, “It is simply unacceptable that the VA is failing to properly notify our country’s veterans about their options when they file legal claims, essentially robbing them of their rights. Veterans must have the ability to seek legal recourse in cases of medical malpractice or other negligence – period.”

Marine veteran Brian Tally and AMVETS Chief Advocacy Officer Sherman Gillums Jr. meeting with members of Congress. (Photo courtesy of Brian Tally)

Two additional bills – H.R. 3813 and H.R. 4526 — materialized in the House of Representatives last year, but haven’t gained as much traction as the recent Senate bill. Tally is hopeful that this will be the successful conclusion to his legislative efforts.

“This historical bill will be a huge win for all Veterans, and will ensure that the VA is transparent to the Veterans that they serve,” Tally said.