Semper Fi in Action: Marine Vet Brian Tally’s Persistence and Integrity

The short title of the proposed legislation is the “’Rally Around Tally’ VA Medical Care and Liability Improvement Act,” named for Marine Corps vet Brian Tally. And that’s the last of the short things.

In 2016 Tally, suffering from severe back pain and night sweats, called his VA primary care doctor who prescribed painkillers over the phone. Next, two ER visits and both times he saw a nurse practitioner, not a doctor. Both diagnosed a back sprain and suggested stretching. Neither one ordered a blood test. Nor did the VA primary care doctor who saw Tally next. She agreed with the diagnoses, ordered more painkillers and requested an appointment with an orthopedic. Tally, unable to get an appointment, paid for his own MRI which revealed severe spinal stenosis and swelling. The VA, after three mis-diagnoses, agreed that Tally needed back surgery.

There was a wait, of course: 9 months. The Tallys pushed back and the VA agreed to use an out-of-VA surgeon. The surgery revealed an aggressive staph infection attacking the spinal column, destroying it. Those blood tests he didn’t get? They might have detected the infection before there was permanent injury.

This is not the end of the story.

Realizing the damage was permanent, Tally filed a malpractice suit against the VA in March 2017. He waited the required six months only to learn that his claim had been sent to a different office because of staff reductions and re-alignment at the VA. But his VA attorney indicated a financial settlement was likely because there was liability, and his primary care physician had failed the standard of care.

Eight months later, he learned that his physician was not a VA employee, but an independent contractor for the VA: the VA was not legally responsible for the negligence of its contractor.

But, wait. There’s another shoe to drop: during those eight months Tally waited, the statute of limitations ran out, and with that, the possibility of filing a civil suit.

The VA did eventually settle, at an amount considerably less than the total of Tally’s out-of-pocket expenses and loss of future income, etc. Worse, an independent report detailing the scope of permanent damage came after Tally had signed the settlement agreement, so that was not considered.

Language in the settlement refers to the “alleged” claim of misdiagnosis, and delayed diagnosis and treatment.  Alleged? Anybody besides me notice the absence of accountability here?

Tally has taken his case to Washington. Oh, in case you’re wondering, there’s a 1950 law on the books that prohibits military personnel from suing the government: the Feres Doctrine. So Rally Around Tally deals with the VA making it plain to a patient whether or not the medical practitioner is a VA employee  or an independent contractor, establishes a deadline for the VA to respond to veterans’ requests for information on their treatment, and requires the VA to assume some responsibility for contract employees.

How likely is it that a vet being treated would think to ask that question about the medical practitioner or physician?  I guess that remains to be seen.

I am incensed and touched. Incensed at this long falling-down-stairs incident at the VA, but touched by this Marine vet’s persistence and above all, his integrity.  His physical situation is set, so his actions are not for him, but for others.

Semper Fi, Brian. Count the National Veterans Foundation as part of the rally around you.