Part II Brian Tally – VA Neglect, Wrong Diagnoses Cause Permanent Damage

By Faye Higbee

In the last article we explained how the VA’s neglect and incompetence ruined the life of Brian Tally. You can read that here: Part I – VA Malpractice/Negligence — The Case of Marine Veteran Brian Tally. The Tallys went to a private imaging facility and paid $500 out of pocket for an MRI, which would end up eventually saving Brian’s life. He submitted the MRI to the VA. On March 16, 2016,  a doctor in the VA Orthopedic department examined it, and told them Brian needed surgery.

They scheduled the surgery for December 7, 2016, which was 9 months away. He had been in agony for so long that waiting for help was not going to work. They literally pleaded with the Orthopedic Department for help. They were then referred to the Veteran’s Choice Program (referred him to a civilian doctor). Two weeks later, he met with his new surgeon. The surgery was set for April 30, 2016 at Scripps Hospital in San Diego.

The surgery lasted 4 hours. When the doctor briefed Brian’s wife on what he found, it was heart rending. He stated that Brian’s spine looked like it had been “moth eaten” and confirmed that he was in unimaginable pain. The surgeon immediately ordered a Cat scan, MRI, CT Scan, and EKG as well as ‘dozens of blood tests’ to find out what was going on in Brian’s body.

Brian stated,

“These tests were conducted immediately after surgery and the findings showed that I had tested positive with a bone eating staph infection [Osteomyelitis], that was in my L5-S1, and was eating the bone, the disc, and tissue, in which ultimately gave me all of the immediate low back pain, weight loss, fatigue, profuse sweating, spinal stenosis, herniated disc, and a large annual tear. I was being eaten alive.”

He was hospitalized for about a week, then sent home with an (IV) PICC-line for antibiotics. His wife had to administer the antibiotics 3 times a day for 3 months, followed by one month of oral antibiotics. After months the staph infection was gone but the doctor informed them that there was considerable damage to Brian’s spine from the original misdiagnosis/neglect. It was confirmed per a myelogram on March 3, 2017 that there was permanent nerve damage,  and lots of residual nerve damage that is now affecting other parts of his body.

Brian will live with chronic pain for the rest of his life. Typically this kind of infection in caught within two days, however Brian suffered with this bone-eating infection in his spine for four months. He has trouble walking, sleeping, and experiences emotional problems, including anxiety. He has urinary incontinence, he has reproductive issues, bowel movement irritation, constipation. He has massive low back pain, low back stiffness, shooting and burning pains in his legs, pressure on his spine, and neck pain from the infection.

The surgeon  had to place screws in his lower back, which has thrown off his entire spine.  Now over the past 6 months he has encountered several herniated discs in the C3 through C5.

He spends much of his time in a recliner because it takes the pressure off of what’s left of his spine.

VA employees vs independent contractors

Brian Tally filed a tort claim in March of 2017 for the VA’s violation of standard of care.

According to the Federal Tort Claims Act: only federal employees can be sued under the FTCA, not independent contractors hired by the federal government (unless they are treated like employees). Brian was not notified that his doctor was an independent contractor until 11 months had passed. The VA sent a letter which denied responsibility for the negligence because his doctor was listed as a “contractor,”  information which was not disclosed to him until AFTER the statute of limitations had run out in the State of California.

The VA attorney informed Mr Tally on numerous occasions that the VA failed to meet “standard of care” and that a “breach” with  liability was involved, which he has on audio tape. The ER staff and the Primary care both failed to meet the standard of care. Once Brian was informed that there was an independent contractor he immediately filed a claim. He found out just days ago that the claim was denied because the attorney pointed back to ER staff at the VA for violating “standard of care.”  It’s a blatant runaround designed to remove responsibility for negligence and malpractice on the part of all parties involved.

I’ve been told that I can always file a federal appeal with the VA, but how is this the case if the doctor was potentially not a technical employee of the VA, even though I met her in a VA clinic, and she wore a VA badge?  If this is the case won’t the federal appeal come up with the same “no fault of the VA claim” as the first suit did? Something doesn’t pass the smell test to me.   If the doctor is or isn’t a VA employee, why was I not made aware of this until so much time had passed.  I’m not sure if my statute of limitations has run out against the primary care doctor because the VA failed to inform me until the decision was made that this was even a possibility. How can that be the case?  How many other thousands of veterans are facing the same uphill battle?  Was this information not disclosed to me intentionally as to allow for time for the statute of limitations to expire?  These are the questions I need answered and it has been an everyday struggle trying to find an attorney to fight for me.  Once an attorney hears the words VA they immediately inform me that they cannot take this case on at this time.” Brian Tally

Doctors who are “independent contractors” should be CLEARLY identified on their name badges, so that veterans will know who is caring for them. Did the VA intentionally wait to prevent him from properly filing his claims? The runaround from the attorney for his “independent contractor doctor,” the pointing fingers of blame for something as heinous as what happened to Brian Tally is egregious.

“This horrific experience that I endured can never happen to another veteran ever again.” Brian Tally

This once vibrant US Marine Veteran can no longer provide for his family the way he used to. He no longer works out, he can’t run anymore, can’t enjoy amusement parks with his kids because he can no longer participate on the rides. He can’t walk or stand for longer than 10 minutes without having to re-adjust his spine, like needles in his back that force him to move constantly to prevent him from stiffening up.

This is how we treat our veterans?

When they are in pain the doctors shove them full of drugs and never check to see what’s really going on? Treating the symptom instead of the cause is NEVER good medical practice. This case has destroyed Brian’s quality of life, and he has been prevented from seeking any reparations whatsoever.



Featured photo: Before – Left-  Sgt Brian Tally as a US Marine. He served with the 1st, 2nd, and 3rd FSSG (Force Service Support Group) as Landing Support Specialist / Logistics between 1995 and 1999. Right- Brian using a walker