A Marine Corps veteran was denied his medical malpractice claim due to a little-known statute of limitations loophole. Brian Tally was misdiagnosed with a lower back strain, instead of staph infection that was eating away at his bones.
Tally lives with his wife and four children in Temecula, where he owned and operated a landscaping business. Then one morning in 2016, he woke up feeling like that he couldn’t get out of bed. A few days later, he had developed severe back pain. His pain kept him from walking anywhere.
His wife took him to the emergency room at the VA Loma Linda. The doctors x-rayed his back and could not find anything wrong with it. They diagnosed him with a back sprain and prescribed pain pills.
However, Tally’s pain did not go away, so he made an appointment with his VA primary care doctor. His doctor also examined him and believed his issue was a lower back sprain. She advised rest and stretches.
According to CBS8, Tally and his wife requested a blood test and a MRI. The VA doctor performed neither. The family of six finally decided to pay out-of-pocket for a MRI test, which revealed he needed surgery immediately.
The VA’s surgery department could not get him in for nine months, so he applied for a special program that let him get his surgery at a private facility. In preparation for his surgery, his blood was finally tested and a staph infection was revealed. The infection left him permanently disabled with screws in his spine and damage to his tissue, bones and nerves.
Talley filed a claim for damages with the VA. He was in contact with VA lawyers who spoke to him about a possible settlement. He did not feel the need to get his own attorney.
However, Talley would soon learn his primary doctor was a contractor, not an employee of the VA. That means the statute of limitations for filing a medical malpractice lawsuit was different. For VA malpractice claims, you have two years, but for other claims, there is only a year to file.
Talley received a letter from the VA denying his claim because his doctor was a contractor, and he had exceeded the one-year time limit.
He has since contacted an attorney regarding his case and is now pursuing legislation that would require veterans to be alerted if they receive medical care from a contractor.