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THE VA LEGAL LOOPHOLE THAT RUINED MY LIFE AND SET ME ON A MISSION

January 17, 2020 Brian Tally 0 Comments

Many thoughts ran through my mind during a fateful visit to a Department of Veterans Affairs (VA) emergency room. One of them was not, “Is this doctor who’s treating me an independent contractor”? But this would turn out to be perhaps the most critical question, secondary only to what was causing the excruciating pain that brought me to the emergency room in the first place.

In January 2016, my life changed in ways that I could never imagine. I endured grueling pain, bed soaking night sweats, and endless hours of lying on the cold bathroom floor desperately seeking any sort of relief. After multiple trips to the em ergency room and an x-ray, I was injected with Dilaudid, Toradol, and Kenalog and was given a diagnosis of a “low back sprain” and sent home with a cocktail of pain pills.

This would continue for (4) months until surgery was finally approved because my wife paid out of pocket for an MRI to prove to the VA that something was medically wrong inside my spine. To the surgeon’s surprise, as I laid opened up on the operating table, he found the cause of my pain — a bone eating staph infection that was aggressively attacking my spine and was destroying my spinal bone, tissue, discs, nerves, and internal organs. An infection that would’ve been detected much earlier had a doctor ordered a simple blood test and an MRI.

Once we realized that this untreated and near fatal infection led to a host of other residual medical diagnosis, my family and I decided to file a claim under the Federal Tort Claims Act (FTCA) for medical malpractice and gross negligence. Six months into the claims process, I began to receive calls from the VA’s General Counsel’s office. Each caller would repeatedly admit that the VA failed to meet the standard of care and someone was working on settling our claim. We were asked to be patient as “this is a very long and tiring process.” They appeared very sincere, apologetic, and to show a great deal of compassion. These optimistic calls of certainty came at our most desperate, and vulnerable times of need and they continued on for several months as we tried everything we could to stave off complete financial ruin.

Then the bombshell dropped. Nearly one year into the claims process, we received a letter stating that the VA was not responsible for the medical malpractice and gross negligence. The reason given: the clinician who made the error(s) was not a VA employee, rather an independent contractor working within the VA, and behind the VA veil, thus the Federal Tort
Claims Act did not apply. This meant my only recourse was to sue in state court for damages.

The problem was the statute of limitations to sue in state court was one year — which had just expired when VA general counsel conveniently revealed that a VA independent contractor was indeed at fault. This delayed notification of fault, combined with the FTCA exclusion of independent contractors, provides the agency with the perfect black hole through which medical malpractice claims disappear forever, no matter how egregious the wrong is or how badly it has ruined lives.

Because of this horrific nightmare and the number of other veterans who already have endured this type of egregious treatment, it was time for me to take action. As I began uncovering jaw dropping information on how these cases were manipulated by VA attorneys, I embarked on a mission to change the very law that essentially ruined my life. I formed an online legislative team, and we drafted a bill called the “Brian Tally VA Medical Care and Liability Improvement Act,” or ‘Tally-Bill’ for short. This law, if passed, would protect all veterans who seek treatment in every VA hospital and clinic regardless of the employment status of the clinician. It would effectively place the necessary safeguards that are needed to ensure veteran protection to include a clear path of legal recourse in a timely manner, and force the office of VA General Counsel to work in good faith with veterans who are victimized by medical errors.

In September of 2018, I took the ‘Tally-Bill’ to Washington DC, walked the halls of Congress, going door to door, urging lawmakers to change this shameful and outdated law. Within 30 days, the bill had caught the attention of a Congressional Representative, who introduced the bill on the House floor, and received a bill number, H.R.7105. Like most bills, however, it would die during that session of Congress after the original bill sponsor failed to win re-election, which meant we would need to tirelessly pursue a new bill sponsor in the new Congress.

In January of 2019 we started all over again. I remained positively engaged in pursuit of a Champion in Congress who could be our new bill sponsor and re-introduce the ‘Tally-Bill’. Through perseverance, tenacity, resiliency, and utter strength through determination we landed a new bill sponsor in July of 2019. Congressman Mark Meadows of North Carolina introduced H.R.3813, the ‘Brian Tally VA Medical Care and Liability Improvement Act’, and honorably took the lead on this extremely important Bi-partisan veteran legislation that would ensure the rights and protections of all veterans and their families after falling victim to VA medical malpractice. Shortly thereafter Congressman Mike Levin followed suit and respectably introduced the ‘Brian Tally VA Employment Transparency Act’, in partnership with Congressman Mark Meadows. We have made extraordinary headway in Congress, however, our mission is not complete! I continue to fight and advocate daily to ensure we effectively close this 73 year VA legal loophole that has destroyed the lives of veterans and their families for generations and will continue to do so until Congress acts and amends Title 38 of the US Code by passing H.R.3813 and H.R.4526. VA hospitals can no longer be the place where accountability goes to die. We owe it to our veterans to fix this systemic problem once and for all. Please help save lives by calling, writing, or visiting your Congressional representatives and urge them to support and pass H.R.3813 and H.R.4526 without delay.