A 72-year-old legal loophole sunk his VA malpractice claim. Now this veteran wants to change the law.

Matt Saintsing
August 15, 2018 - 6:20 pm

Photo Courtesy of Brian Tally

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Brian Tally woke up one morning in January 2016 with sudden and debilitating back pain—the kind that rendered him bedridden with the inability to even stand, let alone walk. As a former Marine, he did what many veterans do when hit with an unexpected injury: he went to the VA, a decision, Tally says, changed his life forever. 

A doctor who he thought worked for VA, but was actually an independent contractor, botched his diagnoses delaying treatment for months. In the meantime, his condition became so grim that he feared for his own life. According to documents obtained by Connecting Vets, the hospital openly admits that Tally received second-rate care while at a VA emergency room in Loma Linda, Calif., about 56 miles east of Los Angeles.

Photo Courtesy of Brian Tally

But to add insult to literal injury, a loophole in a 72-year-old law deflects VA’s responsibility and leaves Tally with no legal alternative to seek compensation. Instead, he’s been out of work for the past two-and-a-half years and is in dire financial straits as he lives with irreparable damage to his spine. 

What happened to Tally, he says, can happen to any veteran. That’s why he’s on a mission to warn others and hopes to ultimately change the law. 

“This has been a severe financial hit to my family, because of the injury,” says Tally. “It’s too late for me, but I want to protect veterans from unidentified independent contractors who aren’t held to the same standard as VA employees.” 

It started in January 2016, when Tally’s wife, Jenny, saw the agonizing pain her husband was in and brought him to a VA emergency room in Loma Linda. 

While there, Tally never saw a physician. Instead, he says, a triage nurse handed him a “bag of pills” after an x-ray showed him with a sprained back. They then sent him on his way with no answers as to why he was in such excruciating pain. 

Just two days later, Tally was back at the VA. This time, in a wheelchair. 

Photo Courtesy of Brian Tally

The sharp aching became so unbearable that he experienced a panic attack right there on the floor in the emergency room. To ease the pain a nurse gave him two shots of Dilaudid, an opioid pain medication made from morphine, and another of Kenalog to reduce inflammation. 

Jenny had repeatedly asked for a blood test and an MRI of his back. Neither happened, on the grounds that his x-ray didn’t warrant any additional tests.

“I thought everything was normal,” he says. “I never really suffered trauma before, and I haven’t spent a lot of time in an ER so I thought what they were doing to me was standard procedure.” 

But the couple was determined to find out what was wrong, and they ended up spending $500 out of pocket for an MRI outside the VA system. That’s when doctors told him he had “structural damage” to his back and spine. The MRI showed spinal stenosis, narrowing of the spaces within the spine, several herniated disks, and other vertebral injuries. 

Tally was puzzled. 

“I had no idea how my back was injured, I never even did anything to my back,” he says. The pain, which seemingly came out of nowhere, was equally jarring and mystifying, considering that up until January 2016, he led an active life and ran his own successful landscaping company. 

In March 2016, they brought the MRI— that they paid for themselves— back to the same VA ER. This time, however, VA physicians recommended surgery. But celebrations were cut short when they told him he had to wait nine months. Jenny’s jaw dropped. 

By this time, Tally had already lost 40 pounds from his body going into atrophy, and he feared for his life at just 39-years-old. “There was zero reason for me to be going through this,” he says. 

Doctors eventually recommended him to Veterans Choice, a program where vets can receive health care outside of the VA while the government picks up the bill. On April 30th, 2016, he was wheeled into the operating room at Scripps Mercy Hospital in San Diego where a surgeon was hopeful he could finally fix Tally’s pain. 

What he found, however, showed just how negligent and careless the VA was when initially evaluating Tally. 

Photo Courtesy of Brian Tally

Shortly after the surgeon began operating, he went to tell Jenny what he had found, a spine that appeared to be “moth-eaten.” The surgery was immediately halted and an infectious disease doctor was called in. After a five-hour operation, and a battery of medical tests, it became clear what the source of his back issues was: a bone-eating staph infection that aggressively degraded his spine. 

To this day, how he became infected remains a mystery. “Nobody knows how I got it,” says Tally. “There was zero reason for why I had such a crazy infection.” 

After four months of an intensive intravenous antibiotic regimen, the infection was finally gone. Identifying the disease probably saved his life, says Tally, but he continues living with the consequences of shoddy VA care. 

Over the past two-and-a-half years, his body has undergone intense changes that left him with permanent injury and nerve damage.  

Because of the infection, he has degenerative disc disease in the thoracic, lumbar and cervical areas of his spine. He also has six herniated discs, which he is still waiting on surgery for, urinary incontinence and retention, as well as as a slew of other medical problems stemming from the spinal infection. 

That’s why he filed a tort claim against the VA.  “I never sued anybody in my life,” he says. “I’ve always worked hard for everything I had, I’ve never asked for any handouts.” 

He was motivated by the utterly despicable treatment he received. “From January until I was opened up in April, I hadn’t had a blood test, nor did the VA ever do their own MRI, after I brought my own MRI to them,” says Tally. “They never checked the work of a private imaging center that we paid out of pocket for.” 

Photo Courtesy of Brian Tally

According to internal VA’s documents obtained by Connecting Vets, during the time between he had his initial surgery and when he was first seen his spine further compressed, “causing permanent injury.” 

“A reasonable health care provider would have understood the ominous implications of urinary dysfunction in a patient with severe refractory back pain and known severe central canal stenosis,” an internal VA medical opinion provided to Connecting Vets reads. “The subsequent disabilities from the lumbar spine osteomyelitis would have been foreseen.” 

In other words, according to the VA, any health care provider should have taken the situation more seriously. And the failure to treat Tally accordingly led to a misdiagnosis and irreparable damage to his body.        

He ended up filing a tort claim for $2,175,000 for permanent injury, neglect, and malpractice. 

Tally says he was contacted by a VA attorney who told him the VA “failed to meet the standard of care,” and that a legal settlement was coming his way.

But after more than a year of back-and-forth negotiations, Tally received a letter in the mail where he says the VA reversed its position and told him they were not to blame for the extent of his injuries because his primary care physician was not a VA employee, but was instead an independent contractor. 

In Tally's eyes, once the VA found out a doctor involved in his case was an independent contractor they reversed course and shifted all blame on to her. "They stepped back, wiped their hands clean, and gave me a flat-out denial," he adds. 

He was told his legal fight is not with the VA. The Federal Tort Claims Act—a law written in 1946— requires damages for those who underwent negligence and malpractice of federal employees, but the law falls short of mandating the same for independent contractors working for the federal government. 

When asked for comment on his case, VA spokesperson Randal Noller said, "VA always strives to provide Veterans with the very best health care available." He continues, "when we don’t meet that standard, we hold ourselves accountable. In this case, we worked with the Veteran and his attorney in an effort to avoid litigation, and settled this unfortunate case in a way we hope is meaningful to Mr. Tally." 

Tally received a minimal amount of money for his woes but adds that the VA referred to it as a "litigation risk," not a settlement. That's because Under the Federal Tort Claims Act the government is sheltered from paying out settlements for financial compensation. 

By this time, California’s one-year statute of limitations had well expired, leaving Tally with no legal path for any compensation from the independent contractor physician. 

“I thought I was going to die, I thought I was having a heart attack when I found that out,” he says. 

He was once a successful small business owner who earned upwards of $120,000 a year, but since the pain showed up, he's been unable to work. To offset his financial woes, he has set up a GoFundMe page

Tally believes the VA left him out to dry and used a 72-year-old law to pass the burden of legal and financial liability onto an independent contractor, who still works as a primary care physician at the VA clinic in Loma Linda. 

In the meantime, however, Tally will never be able to work or live a full life. 

So now, Tally had adopted a more ambitious strategy: changing the law. 

He says the independent contractor was unrecognizable from that of a VA employee. And had he known about the legal implications of different categories of employees, he could have forgone going after the VA and concentrate his efforts on the contractor. 

Tally’s ultimate goal is what he calls the Tally Bill, a proposal which would, in part, require all physicians at the VA to identify themselves as being independent contractors. But according to VA handbook 0735, contractors are already required to wear a green badge, while those of VA employees are white. Tally says he didn't see the badge, nor did he know what to look for. 

“It’s too late for me to ever have my wrongs righted, but it’s not too late for other veterans,” he says. 

Today, he’s an advocate hoping to warn other veterans of the potential horror show they may face. 

This September, he's traveling from his home in Temecula, Calif. to Washington, D.C. where is will meet with federal lawmakers, such as Rep. Brian Mast (R-Fla.) and Sen. Ted Cruz (R-Texas) in the hopes that they could be law-changers, too.