Medical Malpractice and Personal Injury Law Blog

Marine Veteran Has Medical Malpractice Claim Denied by VA Because Doctor is Independent Contractor

Posted by Briggs Bedigian | Jul 12, 2018 | 0 Comments

Brian Tally is a veteran who awoke one morning with severe back pain. His wife immediately drove him to the Loma Linda VA Hospital where he underwent an X-ray, was diagnosed with a back sprain, and released with pain medication. His condition worsened rapidly and Tally began using a walker and a wheelchair while returning several times to the VA hospital. Tally says he went to another facility for an MRI that revealed he needed surgery and that he had a staph infection. After filing a liability claim, he was told that the doctor responsible was an independent contractor and the VA could not be liable.

Failure to Diagnose

Tally had joined the Marines right out of high school and since leaving the service operated a landscaping business and had four children. He and his wife had no idea what triggered his back problems because he did not endure any trauma. He used the Standard Form 95 for his VA claim asserting that if a blood test had been taken, the infection would have been detected. Initially, VA attorneys told him that a settlement was likely; however, once they determined his doctor was not a VA employee he was told this was not the case. 

Potential Loophole

Tally explained that he would have no way of knowing whether he was being treated by a VA employee or independent contractor. By the time that this loophole was discovered and explained to him the statute of limitations had passed. He is left with nerve damage that causes frequent pain, in addition to arthritis. He has since contacted an attorney to pursue his claim and is also acting as an advocate publically for other veterans who may find themselves in a similar situation.

VA Delays

Veterans have been experiencing the problem of unreasonable delays for medical treatment at the VA for years. The clinics simply are unable to keep up with the number of patients. The statute of limitations for bringing a medical malpractice claim against a third-party provider, such as in this case, is a period of two years. The Loma Linda facility opened in 1977 and struggles to deliver timely care to the more than 72,000 veterans in San Bernardino and Riverside counties. Tally has established a GoFundMe page to take donations that will be used for his legal expenses and such.

Filing VA Malpractice Claim

The VA has a standardized procedure specifically for claims of medical negligence as follows:

  • Standard Form 95 is to be completed and submitted.
  • To support a claim for personal injury or wrongful death, a physician's report is required that outlines the type(s) of injury, the extent of the injury, periods of hospitalization and several other details.
  • An itemized list of related expenses should be included such as medical costs and burial expenses.
  • Any claims relating to property damage are similarly to be documented with the evidence necessary to prove the costs of damage incurred.

Staph Infections

Infections stemming from Staphylococcus (Staph) bacteria are often severe. The infection originates when bacteria enters the body and travels in the blood potentially harming other organs, muscles, bones, etc. One common result is Toxic Shock Syndrome, an often fatal condition. Staph may also be transmitted among those living or working in close proximity to one another. The bacteria is very resilient and can survive in potentially volatile environments.

About the Author

Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm's litigation practice.  Briggs' legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 

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