Surgeons During Operation
10 October 2018

Veterans Affairs Misdiagnosed Him Three Times. Now He’s Fighting Back.

Brian Tally, a veteran of the Marine Corps who lives in Temecula, California, is fighting the battle of his life. In 2016, Tally was misdiagnosed by Veterans Affairs (VA) medical professionals a total of three times, ABC7 reports. He was left with severe and permanent injuries. Consulting doctors told him that he had been the victim of textbook medical malpractice.

No longer able to run his small business, Tally spends most of his time in a threadbare recliner, the only place, he says, that he finds a little relief from the pain. But due to a shameful loophole in federal law, Tally’s efforts to bring his case to court, a right enshrined in the Constitution, were blocked.

Veterans Affairs Doctors Failed To Diagnose Life-Threatening Spinal Infection

Brian Tally is a cautionary tale for any veteran who seeks out medical care at the VA. In January 2016, he began to experience troubling physical symptoms – severe back pain, night sweats and difficulty urinating. His primary care doctor at the VA prescribed painkillers over the phone, but the pain just kept getting worse.

Surgery Team

“I was on the floor,” Tally says, “I was in traumatic pain […] literally in tears.” Suffering and scared, Tally took himself to the VA emergency department in Loma Linda, California. He went twice, but on neither occasion was he administered the simple blood test that could have helped to diagnose his true problems. He didn’t even get to see a doctor. Instead, the medical team at the ER conducted an X-ray scan of Tally’s spine.

A nurse practitioner diagnosed Tally with a “low back sprain” and told him to stretch. Tally took his test results to his primary care physician, who works at a VA clinic in Murrieta. The doctor agreed with the initial diagnosis, instructing Tally to stretch and prescribing more pain pills. The doctor also advised Tally to see an orthopedist, but he was unable to secure an appointment.

In the end, Tally and his wife decided to pay for an MRI themselves. “My wife made the decision,” Tally says. “She goes – you’re down 40 pounds, you have these crazy night sweats, you can’t use the bathroom properly – there’s something wrong. This doesn’t happen to a 39-year-old guy.”

Self-Purchased MRI Finds Evidence Of Widespread Spinal Damage

The MRI uncovered evidence of significant spinal problems. Tally has “severe spinal stenosis,” a condition, either congenital or acquired, in which the spinal canal narrows toward the base, pinching of nerves and constricting the spinal cord. And his spinal canal was swollen. Tally took his new results back to the VA. Finally, they agreed that Tally’s problems were bigger than a low back sprain.

Tally needed surgery, immediately. But again, help would not come immediately. There were more delays at the VA. Surgeons couldn’t fit Tally into their schedules for another nine months. “If I would’ve went another month and a half, I would’ve died,” says Tally.

Tally and his wife couldn’t wait nine months. So they pushed for an earlier surgery date and, in the end, the VA relented, arranging for a surgeon outside the VA system to handle his case. Dr. Jean-Jacques Abitbol of San Diego’s California Spine Group performed the operation.

Independent Surgeons Finds “Aggressive” Staph Infection

Abitbol says Tally narrowly avoided permanent spinal injuries. “The bone at the very bottom could’ve collapsed down,” Abitbol told a reporter, “he could have had permanent neurological problems. He could have been paralyzed.” Abitbol also had a message for the VA doctors. He says that Tally’s MRI results, along with his inability to urinate properly, should have served as a serious warning sign. “Had you waited another six months,” the doctor says, “that would have been disastrous to his bone.”

During the surgery, Abitbol’s worst fears were realized. Tally had an aggressive staph infection. The infection was “eating away” at his spine. “This kind of bacteria, if not taken care of, can get into the blood and cause what’s known as sepsis,” Abitbol explains, “and ultimately result in system-wide failure of the organs and ultimately death.”

Abitbol told reporters that a simple blood test performed by the VA’s medical professionals could have identified the infection long before Tally experienced permanent damage. As we’ve seen, that test was never performed. Despite the surgery, Tally had already suffered extensive injuries. The undiagnosed staph infection has led to erectile dysfunction, urinary incontinence and bowel problems, as well as herniated discs in his neck. He lives in constant pain.

Veteran Files Claim For Compensation

Once Tally was clear on the extent of the damage, he decided to file suit, accusing the VA in a medical malpractice lawsuit of misdiagnosing him three times in the span of a few months. But as so many veterans have learned in pursuing their own cases, holding the federal government accountable for personal injuries is prohibitively difficult.

The federal government is protected from so-called tort claims, in part, by a convoluted process that requires plaintiffs to first file a complaint against the government agency under the Federal Tort Claims Act. That allows the government a six-month period in which to investigate the lawsuit’s factual basis and respond formally, or present a settlement offer. Only after this process has been completed can you actually file your lawsuit.

Tally “followed the rules,” ABC7 writes, filing a claim for compensation against the VA under the Federal Tort Claims Act. Then he waited six months for the government’s answer. It was only after six months that Tally would learn that, due to a restructuring in the VA’s general counsel office, his case had been transferred to a different department.

Even so, Brian remained optimistic – the new VA lawyer handling his case told him point blank that an expert internal report had singled out his primary care doctor for violating the standard of care. “She used these exact words,” Brian says, “the VA failed to meet the standard of care and there was a breach – and that there’s liability involved and the VA is looking to settle your case.”

Federal Government Takes No Responsibility For Independent Contractors

Things would only get worse, however. A full eight months after filing his claim, Brian learned that the VA doctor he had been seeing wasn’t a federal employee; she was an independent contractor. Tally had no case, because the federal government can’t be held liable for negligent acts or omissions committed by independent contractors. Even though the VA’s own expert agreed that Tally’s doctor had violated the standard of care, the department had evaded any possibility of a settlement.

The possibility of filing a personal injury lawsuit had also gone down the tubes. Because the VA took eight months to tell him that his doctor was an independent contractor, Tally had missed California’s statute of limitations on medical malpractice claims, which is only one year long. He had lost his right to file a civil claim.

But Brian kept fighting. And, with the help of a medical malpractice attorney, he finally got a settlement. It’s a pittance, compared to all of the suffering and lost wages that Tally has incurred, but it’s something. In fact, a leading attorney for the VA even told Brian that his settlement was not meant to be “commensurate with his injuries.” It was just a way for the VA to avoid further litigation. As in most settlements, the VA has not accepted any liability or fault in the case.

VA Report Speaks Openly About Malpractice

After Tally entered into his settlement agreement, he got more troubling news. This time, he was reading the results of a medical evaluation conducted on behalf of the VA by an independent doctor. And it sounds a lot like medical malpractice.

In his report, Dr. Arnold Kim explains how a “red flag” missed by Tally’s VA team “allowed for further destruction of the spinal column.” Dr. Kim believes that damage to Tally’s spinal cord “also led to the veteran’s current lumbar IVDS, erectile dysfunction and voiding dysfunction.” If the VA doctors had properly evaluated and treated Tally, these measures “would have likely prevented the majority of the disability from the lumbar spine injury,” Dr. Kim concludes.

Why were the results of Dr. Kim’s analysis only released after Tally agreed to his small settlement? It’s unclear, but Tally believes there’s more to the story than the VA is letting on. “The more and more I thought about what had happened to me – it felt criminal,” he says.

The Tally Bill Could Change Things For Veterans

Thankfully, Brian Tally isn’t lying down anymore. He’s standing up for veterans everywhere and taking his fight to Congress. In September, Tally traveled to Washington to gauge interest in the “Tally Bill,” a piece of legislation that would force the Department of Veterans Affair to disclose when a doctor is an independent contractor and would require that the agency take at least some responsibility for negligence committed by contractors.

Tally’s already found support in high places. Virginia Congressman Dave Brat has agreed to sponsor the Tally Bill in the House of Representatives. The bill has now been referred to the Committee on Veterans’ Affairs.

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