In 2018, McGowan, Hood, Felder & Phillips, LLC learned about Marine Corps veteran Brian Tally. He was misdiagnosed by doctors in the emergency room at the VA Loma Linda hospital – a diagnosis that was seconded by his own primary care physician at a different VA clinic. What those VA doctors diagnosed as a sprained back was actually a bone-eating staph infection in his spine. It left Brian permanently injured, and almost cost him his life.
When Brian sought compensation for his injuries, he was told that because the doctor was a contractor, and not a VA employee, he could not file a medical malpractice lawsuit against the federal government. Furthermore, because the VA waited until the last possible moment to inform Brian of this fact, he was unable to file a claim in state court, either, because the statute of limitations had run out. This loophole in the law left Brian with no options, and it is safe to assume he is not the only veteran for whom there has been no justice.
That is why we are thrilled to learn that in July, North Carolina Representative Mark Meadows introduced the Brian Tally VA Medical Care and Liability Improvement Act. The new bill is designed to help protect veterans who have been victims of medical malpractice:
“The bill makes critical changes to current law by requiring the VA to notify any veteran making a malpractice claim of both their care provider’s employment status and their options for a malpractice claim under their individual state law in 30 days or less. If the VA fails to provide this information within 30 days, the agency becomes liable and can be sued in federal court. It also places tighter restrictions on contractors working through the VA—creating a new penalty where a contractor is banned from working with the VA if they are found liable in 3 medical malpractice incidents over a five year window.”
Brian Tally reached out to us directly to tell us about the new bill. He called to give an update on the things they have done legislatively to change the Federal Tort Claims Act, and to ask us to help him spread the word about the new bill.
We are proud to support Brian and this bipartisan legislation, and we hope that you will join us in these efforts to protect veterans’ health. We invite you to check out Rally Around Tally on Facebook, and to learn more about the legislation and Brian’s story on TeamTally.net. You can read about Brian’s story below, too.
We all wish you the best of luck, Brian, in your fight for VA accountability. We support you in every way.
VA Denies Marine’s Malpractice Claim Using Loophole
The VA system recently denied a California Marine Corps veteran’s malpractice claim against the Department of Veterans Affairs due to a nefarious loophole. Brian Tally joined the Marine Corps straight out of high school and, up until 2016, was living a relatively normal life.
According to an article on ABC 8 News, Tally went to bed one night feeling healthy and woke up the next morning and couldn’t get out of bed. Within a few days, his back pain was so severe that he couldn’t walk or use the bathroom properly. Tally’s wife drove him to the emergency room at the VA Loma Linda hospital, where doctors took a back x-ray and sent him home with pain pills. They told Tally he probably just sprained his back and that they didn’t see anything wrong.
After the pain continued, Tally saw his primary care doctor at the VA Clinic, who agreed with the sprain diagnosis and prescribed a few weeks of rest. Tally believes the VA doctors should have ordered both an MRI and blood tests, both of which he claims he and his wife requested. They ended up paying for an MRI out of pocket, which showed that he needed immediate surgery.
Tally had already been in extreme pain for six months, and the VA’s orthopedic surgery department told him he’d have to wait nine months to schedule the surgery. After applying to get into the Veteran’s Choice Program (VCP), he was able to schedule surgery at a private facility in about a month, and it was completed at Scripps Mercy Hospital in San Diego.
After getting blood work for the surgery, doctors discovered Tally had been misdiagnosed months earlier, and had been suffering from an aggressive, bone-eating staph infection in his spine. The aftermath of that infection has left Tally with permanent disabilities, including nerve, bone, and tissue damage. He also has screws in his spine. The initial failure to diagnose and delay in treatment lead Tally to file a claim for damages with the VA.
Justice was not served for this veteran Marine
The claim was for just over two million dollars and, at first, negotiations with the VA seemed positive. “I started receiving phone calls from VA attorneys stating to me that the VA failed to meet the standard of care and that there will be a settlement coming my way,” said Tally.
Then, after about a year, he received a letter stating his claim was being denied. It said the VA wasn’t to blame for his injuries because his primary care physician was a private contractor for the VA and not a VA employee. The statute of limitations to file a malpractice suit against the VA is typically two years, but since Tally’s doctor is a private contractor, he can no longer sue her, as the statute of limitations to sue her in California (one year) has now run out.
This is a loophole of which many veterans are not aware, said Tally’s attorney, Glen Sturtevant. “Veterans and their family members, as they’re going to the hospital or clinic, don’t know who’s a contractor and who’s an employee,” he said.
And Tally points out, “There are veterans right now that may have a case of malpractice or negligence, who think they have two years to file a claim, when maybe they only have one year because the VA system is full of independent contractors.”
Tally is now working with his congressman’s office to draft legislation that would require the VA to notify veterans when they receive medical care from a private contractor.
If a doctor or VA hospital’s negligence or mistake caused you injury, talk to the South Carolina medical malpractice lawyers at McGowan, Hood, Felder & Phillips, LLC today. It’s crucial you have experienced and skilled representation on your side, especially when you’re dealing with your health and large medical bills. Let us help. Call us today at 803-327-7800 or complete our contact form.
Randy is the former President of the South Carolina Association for Justice. He has been certified by the American Board of Professional Liability as a specialist in Medical Malpractice Law which is recognized by the South Carolina Bar. Randy has also been awarded the distinction of being a “Super Lawyer” 10 times in the last decade. He has over 25 years of experience helping injured people fight back against corporations, hospitals and wrong-doers.
Read more about S. Randall Hood