Update on Marine Veteran Brian Tally’s Case Against VA for Malpractice

By Faye Higbee

In January this year we reported on a tragic case of VA malpractice that left Marine Veteran Brian Tally with an infection that totally destroyed his livelihood, and his ability to take care of his family. We spoke to him on May 4 and learned that he has continued to be denied any compensation or relief from the VA, and now has been diagnosed with DDD – Degenerative Disc Disease stemming from the original case of osteomyelitis.

Remember that Brian was a successful business owner until the VA misdiagnosed a serious infection that literally ate him from the inside out. Everything in his body is affected simply because his primary care physician ignored the symptoms and just fed him drugs that did no good whatsoever.

You can review the entire case at these links: 

Just a week ago, Brian was informed that his Title 38 U.S.C. 1151 claim had been denied. The person who helped fill it out over the phone was an aide to the VA Area Director in San Diego, who highly recommended that he file the 1151. They fast tracked his request, but it was still denied.

The VA website states:

“Title 38 U.S.C. Section 1151 allows VA to pay compensation for death or disability “as if service-connected.” Don’t be confused with this subtle difference. The disability is not considered service-connected. Under Section 1151, benefits may be paid for:

  • Injuries incurred or aggravated while receiving VA-sponsored medical treatment.”

Remember that previously, the VA waited eleven months (that’s right, 11 months) before advising him that his primary care doctor at the time was an “independent contractor.” Independent Contractors are exempt from malpractice lawsuits because they are not actual employees of the VA. Tort claims have to be filed against the actual employees of the VA. So that claim was denied. By then, the statute of limitations had expired for his claim.

He wrote letters. He emailed. He sent certified letters.  He was advised to file the 1151 claim. His brother also sent letters same. The 1151 was denied.

Brian has muliple audio recordings of VA lawyers admitting that there was a breach in his care and continously informed him that the VA failed to meet that standard of care.

He has been in communication with the General Counsel for tort claims, who is currently reviewing the initial tort claim that was denied back in January, so far to no avail.

“They wear you down, wear you out, and completely strip you of your confidence and hope. My family and I are hoping for some financial relief soon so I can begin the healing process both physically and emotionally.” Brian Tally

Brian is currently working with his Congressman on a bill called the Tally Bill to afford protection for veterans who end up with reckless independent contractors that are hiding behind the VA. This is not the same as veteran’s choice – those doctors are outside a VA facility. These are doctors who are posted inside the VA medical centers. We’ll keep an eye on that to see what happens if and when it comes before Congress.

A retired Marine Gunnery Sergeant named Greg Ready set up a GoFundMe account for Brian.  “People need to step up for this Marine Corps veteran, since the VA has denied help for him, to at least recover some of what he has lost.” Consider helping him  – even a small amount would be appreciated. His constant pain is real, his family is his rock. Let’s help him rise like the phoenix from the ashes of his life.

Update as of June 11, 2018: the GoFundMe Link has been deleted by accident, so Brian created a new one: https://www.gofundme.com/rally-for-tally.