Vet, with aid from Congress, forces VA to increase disclosures in malpractice cases

btallycongresswork-300x240Congress has given U.S. service personnel slightly improved help if they find they have been harmed while receiving military medical care and want to pursue justice via legal actions.

Lawmakers, as part of a big bill at year’s end dealing with many different matters affecting the Department of Veterans Affairs, also quietly approved legal provisions that were part of the eponymous Brian Tally VA Employment Transparency Act. These were signed into law by President Trump before he left office.

The Military Times describes these new requirements for the giant veterans’ health agency:

“Veterans Affairs officials will have to provide basic legal advice to veterans who file medical malpractice claims and provide information on local staffing issues … The new legislation mandates that the department provide ‘notice [to vets] of the importance of securing legal counsel’ and clearly identify the employment status of any individuals involved in the case within a month of a veteran submitting a malpractice claim. VA officials had opposed the idea, saying it creates unnecessary burden on staff.”

A bit of background on Tally, his case, and his battle for these legal changes is in order. In brief, Tally served four years in the U.S. Marines. He asserted that he suffered life changing and debilitating injuries due to botched care by an agency contractor who treated him in Southern California.

As the Military Times recounted, Talley’s awful experiences began when he sought help at the Loma Linda Veterans Affairs Medical Center in California in 2015 after a bout of extreme back pain:

“Doctors [there] diagnosed him with a back sprain and sent him home with painkillers, without any blood tests or further examinations. After weeks without any relief — or additional help from VA doctors — Tally visited a private-sector doctor (at his own expense), where new tests showed a bone-eating staph infection causing severe spinal damage. At the time, Tally was an active father of four and owner of his own landscaping business. Today, he is unable to walk without significant pain. His bladder is mostly non-functional. He said he spent ‘most of my time living in a chair’ and has struggled with depression. Tally’s family filed a claim against VA for malpractice, saying that doctors should have ordered more tests after his continued pain. But after more than a year of working with department officials on the claim, they were notified that the primary doctor involved in the case was an independent contractor, not a VA staffer. That meant he [could not pursue a federal action and] had missed state deadlines for filing proper legal claims for his injuries. Officials did not give any reason why providing that critical information took so long.”

Tally, who spent years battling to correct the bureaucratic snaggle that bollixed up his quest to hold doctors accountable for what he says were wrongs committed against him, will not benefit from the corrective steps with the VA. They were pushed in Congress by Sens. Richard Blumenthal, D-Connecticut, and Thom Tillis, R-North Carolina, and Rep. Mike Levin, D-Calif.

Tally commented to the Military Times about the legislative resolution of his campaign, saying:

“This is what my family and I have longed for to effectively close out this egregious five-year chapter, turn the page and move on with our lives. This will never happen again and ruin the lives of other veterans and their families.”

Tillis told a news site this:

“Medical malpractice remains an issue at hospitals across the country, and veterans should have due process rights if they experience malpractice. This bill ensures that veterans have the information they need to receive justice, whether they were treated by a VA employee or a contractor.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the havoc that can be inflicted on service members and their families when they receive bad or negligent military medical care at hospitals or clinics run by one of the armed services or the Department of Veterans Affairs.

One of the highest and most basic promises the nation makes to members of its military is that they and their loved ones will be honored and kept secure in return for the duty, including the ultimate sacrifice, that our armed forces make on our behalf. This includes assuring them of a lifetime of safe, accessible, and excellent medical care. If that treatment goes wrong, service personnel should not have to bicker with the VA over crucial information the agency may possess that can affect their claims. The Tally measure recognizes this, and he deserves credit for pushing Congress and the VA for increased transparency. We have more hard work to do, though, to ensure the equitable treatment of medical malpractice claims by our brave service personnel.

Photo credit: Brian Tally walking congressional halls in 2019 to push for greater VA disclosures in medical malpractice cases. Picture provided by Tally appeared in Military Times.
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