Loophole allows the VA to deny Marine’s malpractice claim

Taking Action

RICHMOND, Va. (WRIC) — As we celebrate our freedom and our veterans who fought for it, a veteran is speaking out about a little known VA loophole.  

“We need to fix this,” said Marine Corps veteran Brian Tally.

The California veteran was misdiagnosed and left in permanent pain.

A little-known loophole allowed the VA to deny his medical malpractice claim.

He’s now seeking the help of a Richmond lawyer because it could happen to any veteran.

“I wanted to be a Marine, to be the best, to serve my country honorably,” said Tally as he recaps his service to our country. He joined the Marines right out of high school.

A veteran speaks out about a little-known loophole that allowed the VA to deny his medical malpractice claim.

Tally was active, healthy and after the Marines, ran a successful landscaping business in California to provide for his wife and four kids. That all suddenly changed in 2016.

“I couldn’t get out of bed the next morning,” recalled Tally.

Tally woke one day with terrible back pain.

“I was in severe pain. My pain levels were about a 10 of 10,” he explained to 8News. 

His wife rushed him to the emergency room at Loma Linda VA Hospital in California. They took an X-ray and sent him home with bottles of pain pills.

“They diagnosed me with having a low back sprain which was very strange to us, you know me and my wife because I had no trauma,” he said.

Tally got progressively worse.

A veteran speaks out about a little-known loophole that allowed the VA to deny his medical malpractice claim.

“I was in a wheelchair, I was in a walker,” Tally said. “I was peeing in a bucket. I couldn’t even get out my chair in my home.” 

He went back and forth to the VA hospital and got no answers.

“The most debilitating pain that one could go through,” added Tally.

The veteran requested an MRI and the VA refused. 

Frustrated, Tally went out on his own, paying out of pocket for the imaging.

The MRI showed he needed surgery right away. Still, the VA came back with even more frustrating news.  They couldn’t schedule it for another 9 months.

Fortunately, he got into the Veteran’s Choice Program and had his surgery at a private hospital the next month. What the private surgeon found shocked everyone.

A veteran speaks out about a little-known loophole that allowed the VA to deny his medical malpractice claim.

“I was literally being eaten alive,” explained Tally.

He had a bone-eating staph infection, something that could have been detected with a simple blood test.

“Every single time that we went to the ER, there was never a blood test taken,” said Tally. 

Failure to take that blood test led to a misdiagnosis. Tally filed a claim with the VA for damages. The federal form is known as a Standard Form 95.

“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.

However, about a year into settlement talks he said, “Right at the last minute, they pulled the rug underneath my feet and denied everything.”

The VA suddenly told Tally the government was not to blame for his injuries because his primary care physician was not a VA doctor but a private contractor.

A veteran speaks out about a little-known loophole that allowed the VA to deny his medical malpractice claim.

“They effectively blew him off,” says Richmond attorney Glen Sturtevant.

By then, Tally decided it was time to hire Sturtevant.  The medical malpractice lawyer who often tackles VA cases says he’s seen this happen to other vets.

Sturtevant says many veterans don’t know the legal in’s and out’s of VA doctors versus contractors.

“Even though the VA will often times tell the veterans they don’t need a lawyer, they can go out and do this on their own. There are a lot of traps,” said Sturtevant. 

Sturtevant explained the little known VA loophole and says according to federal law, the VA is not responsible for medical malpractice committed by a contractor.

Yet, for any veteran getting care, it can be almost impossible to tell who is a VA doctor and who is a contractor.

“Even though she was wearing a white coat, walking around the VA hospital with a VA badge, she was not a VA employee and instead an independent contractor,” explained Sturtevant.

By the time the VA revealed this, the statue of limitations to sue the contractor for malpractice in state court had run out.

“Only once it was too late for him to do anything about it, he was told this doctor is an independent contractor, we’re not responsible for them,” said Sturtevant.

A veteran speaks out about a little-known loophole that allowed the VA to deny his medical malpractice claim.

“That is unjust and it feels almost criminal,” said Tally.

Today, Tally is left with permanent pain like nerve damage, stomach troubles and arthritis but continues fighting to help other veterans. 

He’s working with his congressman and Sturtevant on a bill to require the VA to identify private contractors.

“I have made this my life goal to change this loophole,” said Tally.

8News reached out to the Loma Linda VA Hospital and were told due to privacy restrictions they could not discuss details of Tally’s treatment.

In Virginia, the statute of limitations to file a malpractice suit against a private contractor is just two years, so one would need to get the ball rolling quickly to navigate the legal process. 

Tally has also set up a GoFundMe page to help raise money to support his family and pay for legal expenses.

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