When lawmakers return to Capitol Hill from Thanksgiving break, they’ll have a host of major legislative hurdles to face, including a possible federal shutdown in early December, a controversial defense policy bill facing a presidential veto, and a path ahead on pandemic relief for the entire country.
They’ll also have Brian Tally’s bill.
Tally, a Marine Corps veteran injured in a medical malpractice case five years ago, has been lobbying for reforms at the Department of Veterans Affairs each of the last two Congresses. He has a pair of pending bills in the House and the Senate which would require the department to provide basic legal advice for veterans who file malpractice claims, in an effort to ensure their legal rights are protected.
“This really has become my obsession,” said Tally, who estimates he has spent about 11,000 hours of his own time lobbying lawmakers and working on the bill in the last four years. “I get up thinking about passing this. I go to sleep thinking about this.
“It’s a mission I have to see through.”
His bill is perhaps just days away from being finalized. Or, Tally may be just a few weeks away from walking away empty handed again.
December will be make-or-break time for dozens of bills like Tally’s that are pending in congressional committees and languishing in legislative limbo.
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Typically, in the waning days of congressional session, relatively minor measures with bipartisan support and limited executive branch pushback get inserted into wrap-up legislative packages and advanced to the White House after larger fights — such as the still unresolved federal budget for fiscal 2021 — are settled.
But this year, amid a presidential transition and uncertainty in Congress because of the pandemic, those kinds of bills face a tougher road to passage. House and Senate leaders may run out of time in the final days of session (or simply ignore the less pressing issues) to pass those measures.
If the proposals don’t pass by Jan. 3 — the last day of the current session of Congress — the legislative slate is wiped clean. Advocates like Tally will have to start over their lobbying work again in the new year.
“I’m still confident,” Tally said. “I think Congress is going to do the right thing this time.”
Years of pain
Tally, who served as a sergeant in the Marines, visited the Loma Linda Veterans Affairs Medical Center in California almost five years ago after a bout of extreme back pain. Doctors 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.
“The doctors weren’t sure why I was still alive,” Tally said.
At the time, Tally was 38 years old, a 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 says he spent “most of my time living in a chair” and struggled to believe that getting out of bed each morning was worth the effort.
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. The information was given to them after the statute of limitations to file a claim in state court had expired, leaving Tally with no avenue for justice.
“I lost my house, I lost my family’s primary source of income, and VA just left me completely holding the bag,” he said.
His bills pending in the House and Senate would mandate that within a month of a veteran submitting a malpractice claim, VA officials provide “notice of the importance of securing legal counsel” and clearly identify the employment status of any individuals involved in the case.
It would not be retroactive, so it would not change any of the result in his case. “I just don’t want other families to go through what we did.”
Tally has worked with multiple lawmakers — including former Rep. Mark Meadows, before he became White House chief of staff — on various drafts of the measure since 2018. The latest version, sponsored by Rep. Mark Levin, D-Calif., was advanced by the House Veterans’ Affairs Committee over the summer.
Before that passage, department leaders voiced opposition to the idea. In a statement to the committee, VA Assistant Deputy Undersecretary for Patient Care Services Maria Llorente said that “it is neither legal nor ethical for the (department) to advise a claimant of the law of a particular jurisdiction,” citing the complexity of different state legal rules.
She also said that VA believes the current malpractice claims system is working properly, despite the problems Tally faced.
But VA’s objections haven’t turned into a major roadblock on Capitol Hill. Earlier this month, Sens. Thom Tillis, R-N.C., and Richard Blumenthal, D-Conn. (both members of the Senate Veterans’ Affairs Committee) introduced companion legislation in their chamber to speed up consideration of the proposal.
All of the lawmakers involved have told Tally they hope to include his measure in end-of-year wrap-up work to be considered over the next few weeks.
Before that, however, comes an inter-chamber fight over the budget, with the possibility of a Dec. 11 partial government shutdown if compromise can’t be reached. Numerous party leaders are also pushing for an additional pandemic relief package. And lawmakers still haven’t fully resolved the annual defense authorization bill, which contains hundreds of pay and policy provisions for the Defense Department next year.
Tally knows his measure isn’t a headline grabber compared to any of those issues.
“But, at the end of the day, this will help veterans,” he said. “So it is a big deal.”
For now, he’s doing his best to remain optimistic that the coming month will be his last waiting for his “mission” to finally finish.
“We’ve been trying to get this through the craziest Congress in the history of the United States. Everything that could have happened — impeachment, covid, everything — seemed to have happened. But we still got this far.”
“I feel confident. But if it doesn’t happen, I’ll begin the march again. I only have so much energy left. But I’ll still be putting my walking shoes on and heading back there.”
About Leo Shane III
Leo covers Congress, Veterans Affairs and the White House for Military Times. He has covered Washington, D.C. since 2004, focusing on military personnel and veterans policies. His work has earned numerous honors, including a 2009 Polk award, a 2010 National Headliner Award, the IAVA Leadership in Journalism award and the VFW News Media award.