Marine Veteran Brian Tally – VA Negligence/Malpractice Leads to Permanent Damage

Faye HigbeeJanuary 29, 2018

0 212 8 minutes read

Part I – Marine Veteran Brian Tally was a vibrant, healthy business owner. He coached youth sports, worked out, was a hands-on active businessman, and enjoyed his time with family. But a misdiagnosis and series of negligent actions by VA Loma Linda in California began a journey into hell for this man who will never recover his previous life.

Timeline

In January of 2016, Brian developed severe back pain. He had not fallen or injured himself in any way. There were no signs of physical trauma, but the pain became intolerable. He began having severe night sweats on top of the ever-increasing pain. He was in a lot of agony for a month before he went to the doctor – he had always been a tough man.

He tried Ibuprofen, but eventually the pain became so severe that he called his primary care physician on February 4, 2016. She mailed him some medications. By the 17th, Brian was in so much pain that he was lying face down on his cold bathroom floor, “moaning and crying for relief.” Because he couldn’t even go to the bathroom, he had a bucket beside him to pee in.

By February 19, his wife was so upset about her husband’s condition that she took him to the ER at VA Loma Linda. They took an x-ray and diagnosed him with low back sprain, and sent him home with a plethora of drugs: Kenalog (steroid), Toradal (Keterolac- anti inflammatory), Gabapentin (anti-seizure drug), and Methacarbomal (muscle relaxant). They told him to followup with his primary care doctor.

In his words:

“On February 22^nd my wife checked me back into the ER. At this point I couldn’t bear the pain any longer and began having panic attacks. I was at a 10/10 with pain, and I was again reiterating my symptoms of severe low back pain, excessive bed / night sweats, and that I could no longer walk as I was in a wheel chair in the ER. The pain brought me to my knees and my wife began to cry and was comforted by fellow veterans as my wife thought I was dying.”

Instead of checking his blood, or anything else, the VA staff simply gave him two injections of Dilaudid. Dilaudid is also known as Hydromorphone and is often used on the battlefield for wounded patients. It’s a heavy painkiller and can cause confusion, addiction, and a host of other issues. Remember, Mr. Tally had no outward signs of trauma to his body. This would have been the perfect time for an MRI to see what was really going on in there. But no, he was sent home again with yet another pile of medications and told it was a lumbar sprain.

ER staff also “yelled” at his wife for “not following up” with the primary care doctor. Except that they had been trying, calling numerous times and receiving no answer back. The hospital managed to get through to Tally’s doctor at the VA in Murrieta. An appointment was set for February 23.

At that appointment, the doctor prescribed even MORE medications and told him to “stretch.” His body had begun to atrophy, he had lost 35 pounds, and couldn’t walk without a walker. He told us he felt like a zombie from all the pain meds. The Tallys demanded an MRI- but they were told that it would have to be ordered by the Orthopedic department at VA Loma Linda. But since the X-rays didn’t show anything, it likely wouldn’t be deemed necessary.

By February 29, once again, calling the doctor did nothing, and he STILL hadn’t been contacted by the Orthopedic department. On March 3, his wife loaded him in the car and drove to a private imaging facility in Temecula. They paid $500 out of their own pocket for an MRI of Tally’s back and had the results sent to his primary care doctor and the Orthopedic department. The MRI showed a horrifying answer to his pain. Things were about to go from bad to critical.

Part II

In the last part of this article we explained how the VA’s neglect and incompetence ruined the life of 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.

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Brian served in the 1st, 2nd,and 3rd FSSG (Force Service Support Group) as a Landing Support Specialist / Logistics between 1995 and 1999.

H/T Uncle Sam’s Misguided Children I and II.

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