A Last Quest : Health care: Was the FBI right to stop sending agents to a physician after discovering he had AIDS? No, Dr. James Cullen says in a lawsuit that survives him.

It was a wintry Sunday morning when Dr. James Cullen died at his home at age 42. In his last months he had lost 40 pounds. His face was ravaged by Molluscum, a virus that produces a kind of wart. Cytomegalovirus, an opportunistic infection that often strikes the optic nerve, had taken his sight.

The day before he died, though, James Cullen was given a small victory in his battle against AIDS.

Janis Bumgarner, a friend of both the cardiologist and his lover, Curtis Lavery, visited their apartment last Jan. 11, a Saturday. She had come to say goodby to Cullen, whose death was considered imminent, and to give Lavery the chance to do some grocery shopping. She also had the news that they had all hoped Cullen would live to hear.

Sitting at Cullen’s bedside, Bumgarner told him that the U.S. 9th Circuit Court of Appeals had ruled in his case against the FBI. In his last days Cullen was drifting in and out of consciousness, so she repeated the news several times.

“I told him three times that day that the decision had come down and that it was favorable,” she says. “I think he understood.”

Less than 24 hours later, James Cullen was dead.

Even though Cullen is gone, Lavery has continued the lawsuit--and the issues are far from resolved. But when the courts rule once and for all, the decisions probably will affect HIV-infected health-care workers for years to come.

The facts are stark: For years, Cullen performed physical examinations for the FBI’s San Francisco-based agents. But once the agency discovered he had AIDS, it quit sending its employees to his office. After much soul-searching, Cullen fought back.

Now, the courts are left with a series of bedeviling questions: Could a physician with AIDS safely perform a physical? Did he have an obligation to tell his patients of his HIV status? Could a federal agency choose not to patronize a doctor based on that information?

And there is one final question, perhaps the most ominous of all: How did the FBI discover James Cullen’s HIV status?

No matter what the court’s decision, that will remain unanswered.

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James Cullen had fewer reasons than some to expect that he carried the human immunodeficiency virus. He had been in a monogamous relationship with Lavery since 1980. But earlier, there had been a period of “experimentation” after a divorce from his wife.

“Jim grew up pretty mainstream,” says Lavery.

The mainstream was in Saginaw, Mich., where Cullen’s father also was a doctor, with the Department of Veterans Affairs. In high school and college Jim did not acknowledge his homosexuality; his sisters, Kathleen Cullen and Barbara Ling, characterize their family as conservative and reserved. As a teen-ager, Cullen played piano, sang in the glee club and starred in a number of school musicals.

“He never wanted to do anything that would disappoint our parents,” Ling recalls.

Jim’s dating experiences never led to any real relationships, and Ling, remembering the night of his senior prom, says she was struck by how miserable he looked.

Through college and medical school, Cullen continued to lead an outwardly heterosexual life. He met his wife, a nursing student, at the University of Michigan and married her while still there.

“They were very compatible in terms of getting along,” says Ling, who still lives in Saginaw. Still, “toward the end something was not quite right. In the back of my mind, I thought something was missing--but I thought it was their careers, which were moving in different directions.”

Not long afterward, Cullen told his sister that the couple, who by then had moved to San Francisco, had decided to separate.

“I waited,” Ling says, “because I knew there was something more.”

Then, in 1978, Jim told her he was gay, and she says, “I remember thinking, ‘This all makes sense.’ ” Earlier that year, Lavery had stopped in a San Francisco bar after attending a birthday party and met Cullen there. Two years later, they moved in together.

Lavery, now a researcher with Bechtel Corp., had worked as a volunteer with an AIDS support group in San Francisco called the Shanti Project. Having to confront the illness in others eventually persuaded him to have an HIV test in June, 1987. It was negative.

Cullen, says Lavery, then felt compelled to ascertain his own HIV status, which he did the following month.

“It was real hard news,” Lavery says of Cullen’s positive result.

Shortly thereafter, several splotches resembling Kaposi’s sarcoma, a tumor involving the small blood cell capillaries, appeared on Cullen’s back. He went to see his own physician, Steven Mehalko at Davies Medical Center in San Francisco, where both worked. Mehalko confirmed that Cullen had Kaposi’s sarcoma and that his HIV status had progressed to acquired immune deficiency syndrome, which destroys the body’s immune system. Eventually, Mehalko would share a secret that gave the two a special connection: Mehalko himself has AIDS.

Before Christmas, 1987, Cullen and Lavery flew to Michigan to break the news to Cullen’s family.

Cullen had been very discreet at work, and few at Davies Medical Center knew he was gay. “Jim kept his life very compartmentalized,” Mehalko recalls. Outwardly, Cullen was in deceptively good health. In August, 1988, five people outside his family knew he had AIDS.

Or so Cullen thought.

FBI Exams Conducted

When Davies Medical Center started Healthcheck in 1983, hospital officials hoped that the service, which provided physical examinations and fitness testing, would be an inexpensive way to increase the facility’s cash flow. Nora Crans, a nurse, was brought in to set up Healthcheck, market it and run it. James Cullen was chosen medical director.

Sometime in 1984, Crans was attending a health fair in the Bay Area and met FBI Special Agent William Young, a senior agent in the bureau’s San Francisco office. Young told Crans he was looking for a facility to do physicals, a condition of employment for FBI agents or applicants.

By November, 1984, Healthcheck had landed the lucrative contract. From then until August, 1988, it performed 300 physicals a year for the FBI in San Francisco--done almost exclusively by James Cullen.

During the physicals, Cullen followed standard clinical practice: He reviewed the patients’ medical history and took their blood pressure and pulse. With his stethoscope, he checked their heart, lungs, abdomen and blood vessels. With his hand, he palpated their chest and abdomen. He looked inside their mouth with a flashlight, moving their tongue with a sterile blade to improve his view.

If the patient was a man, Cullen put on gloves, checked for hernia and examined their genitals as well as performed a rectal examination. With female patients, he performed pelvic and rectal exams. He always wore gloves.

For four years there were no complaints. In fact, the Drug Enforcement Administration also started sending its agents and applicants to Healthcheck.

Then the FBI began to express an interest in Cullen’s sexuality.

“It came in a very discreet way,” Crans says now. During lunches with Young and the nurse who worked in the bureau’s field office, “they’d ask, ‘What is Jim’s personal life like?’ ”

According to Crans, they wanted to know about his dating practices and girlfriends: “I knew they had an agenda in asking, and I thought they had suspicions.”

In general, the FBI has had a longstanding interest in--some would say, suspicions of--many peoples’ sexual practices, particularly homosexuals. Those overtly gay or known to be gay cannot serve in the agency.

The FBI also has a history of using an individual’s sexual history for its own ends. Richard Wallace Held, the special agent in charge of the FBI’s San Francisco office and a defendant in Cullen’s suit, has done just that in the past.

In 1970, according to several FBI chroniclers as well as former agents, Held was assigned to undermine radical groups such as the Black Panthers. Among the Panthers’ supporters was actress Jean Seberg, who was pregnant and estranged from her husband, Romain Gary. In an effort to damage Seberg’s image, Held circulated information to Hollywood gossip columnists alleging that the baby’s father was a Black Panther.

In the wake of the negative publicity, Seberg tried to kill herself and the baby was born prematurely and died within days. Several years later, Seberg succeeded at her next suicide attempt.

Nearly two decades years later, James Cullen was Held’s target.

AIDS Questions Raised

In August, 1988, Young called Crans to set up a meeting. Before then, says Crans, he had been given no indication that anything was wrong. When the two met at Healthcheck on Aug. 17, though, the topic quickly turned to AIDS.

At first, Young said he had some health concerns. After Crans pressed him, he told her that he had information from a reliable source that James Cullen had been diagnosed with Kaposi’s sarcoma. Crans was outraged.

“I said, ‘I feel like you’ve just stepped over the boundary,’ ” she says. Up to that point, Crans was not among those who knew Cullen had AIDS. She told Young he should discuss the matter with Cullen, not her.

When Young and Cullen met on Aug. 23, 1988, the FBI agent told Cullen he had information from an untraceable source that the doctor had been diagnosed with Kaposi’s sarcoma. (Later, when Cullen’s lawsuit came to trial, the assistant U.S. attorney, in a hearing with U.S. District Court Judge Charles Legge, successfully persuaded Legge to protect the source’s confidentiality.) Young also told Cullen that, if the information was true, he should immediately stop examining FBI agents.

According to testimony at the trial, Special Agent-in-Charge Richard Wallace Held had insisted upon the meeting. Held instructed Young to extract one of two things from Cullen: Either Cullen was to guarantee that he didn’t have Kaposi’s sarcoma, or he was to allow someone else to do the physicals.

Cullen, for his part, neither confirmed nor denied he had AIDS. Rather, he said national guidelines covered such a situation, that Healthcheck followed those guidelines and that there was no risk to the FBI agents. He refused to yield to either FBI demand. The meeting ended inconclusively, the matter far from resolved.

Eight FBI agents were scheduled to have physicals at Healthcheck on Sept. 7, 1988. None showed up. After a meeting in the boardroom of Davies Medical Center that day--attended by representatives of the FBI; Davies Administrator George Monardo; the center’s lawyer; Nora Crans; Cullen’s professional partner, Dr. Tom Kaiser, and Cullen--it became clear that the situation could not be resolved to the FBI’s satisfaction without Cullen withdrawing from the physicals.

Special Agent George Clow said the FBI knew that Cullen had Kaposi’s sarcoma and that it had a right to have healthy physicians see agents. Cullen still did not confirm or deny his AIDS status. He believed the matter might end up in court and had brought Jo Anne Frankfurt, an attorney with the nonprofit Employment Law Center, to the meeting.

Cullen lay awake at night, says Lavery, trying to figure out who might have told the FBI he had Kaposi’s sarcoma. Short of giving in, he knew his only real option was to go to court. On yellow legal pads he framed questions to himself: How much of my time will be involved? How much will it cost? How long will it take? How public will it become, and what principle will be furthered?

The Employment Law Center and American Civil Liberties Union had agreed to take his case to federal court. Cullen’s lawyers told him bluntly that he might not live to see the final outcome.

He chose to proceed anyway.

Cullen Suit Filed

The lawsuit filed on Cullen’s behalf in September, 1988--by the ACLU, Employment Law Center and the San Francisco law firm of Pillsbury, Madison & Sutro--had just one purpose: Compel the FBI to resume sending agents to Healthcheck for physicals.

Forming the basis for the suit was a federal law, the Rehabilitation Act of 1973, that prohibits discrimination against the disabled by any federal program or any program receiving federal funds. Cullen--identified in court documents simply as “Dr. John Doe”-had lost only a small amount of business at that point, and money damages were not initially part of the case. (The suit later was amended to seek damages of $27,000, a sum that Lavery will receive if the judgment goes in Cullen’s favor.)

Judge Legge initially rebuffed Cullen’s efforts to get a temporary restraining order against the FBI. “Today’s medical science is tomorrow’s voodoo,” Legge wrote in his opinion, referring to the doctor’s argument that he posed no risk to the agents and other patients.

Believing that Legge had erred, Jo Anne Frankfurt and the ACLU’s Matthew Coles went back to court with more case law to bolster their contention. After a second hearing, Legge granted the temporary restraining order. He did, however, leave the FBI an opening: It was free to seek out other medical services as well.

In May, 1989, the government was called to account for its actions. During the four-day trial in Legge’s 16th-floor courtroom, the FBI conceded that it had made no effort to ascertain if Cullen posed any health risk to its agents.

Several experts contended that as long as Cullen followed federal guidelines for HIV-infected health-care workers, he posed no risk to patients.

The federal Centers for Disease Control recommends that doctors refrain from direct patient care if they exhibit exudative lesions--which leak a puslike substance--or weeping dermatitis, a skin rash that leaks a clear body fluid. Cullen never violated either guideline while practicing medicine. Even the government’s witness conceded that any risky scenario he could envision was wildly improbable.

Health Risks Assessed

Was James Cullen a good doctor?

Colleagues interviewed for this story unanimously praised his clinical skills and enormous empathy.

“He was an all-around solid individual and physician,” says Kaiser.

Did Cullen do the right thing in not telling the FBI of his HIV status when it asked? That’s a harder question.

“I think patients have a right to expect honest answers to questions,” says Dr. Arthur L. Caplan, director of the Center for Biomedical Ethics at the University of Minnesota. “Anything that has some bearing on patient care deserves an honest answer.”

FBI agents were in far more danger in the field than in Cullen’s office, Caplan says. However, he notes, when it involves their care “they have the right to be stupid. They have the right to be bigoted. They have the right to be silly.”

Lawrence Gostin, executive director of the Boston-based American Society of Law and Medicine, disagrees: “Under those circumstances, they had no right . . . Only if there is a significant risk do they have the right to know.”

Cullen decided to appeal Legge’s decision to the U.S. 9th Circuit Court of Appeals, though it required little direct involvement. Any potential benefits from the case would fall to those who followed him.

In 1990, Cullen’s health began its inexorable decline. He decided to retire while his health still held. In September, 1990, Cullen and Lavery took a trip to Paris.

Cullen’s appeal had been heard by the middle of 1990. All that was left was for the three-judge panel to decide. By year’s end, there were deep concerns about how much longer Cullen would last. In December, 1990, the ACLU’s Coles wrote the court of Cullen’s deteriorating condition, imploring them to act before he died.

It was another year before the ruling and before Cullen’s death.

The victory was indeed modest: Cullen had not won his case. The appeals court did not say that he was right and the FBI was wrong, only that he could legally sue the government under provisions of the Rehabilitation Act. The main issues were left for Judge Legge, who has yet to issue a ruling.

But Lavery thinks he knows what it meant to James Cullen: “It meant someone had agreed that what he did was something that someone with integrity would do.”