Police blame some deaths on ‘excited delirium.’ ER docs consider pulling the plug on the term.

According to Sheldon Haleck’s parents, the 38-year-old’s only crime was jaywalking. However, on that March night in 2015, when Honolulu police discovered him acting strangely, they pepper-sprayed him, shocked him with a Taser, and restrained him. Haleck went unconscious and was taken to the hospital. The former Hawaii Air National Guardsman was taken off life support before his parents could travel from Utah to Hawaii.

“Nobody’s supposed to die from something like this,” Haleck’s father, William, explained.

An autopsy determined that Haleck’s death was a homicide, and his family filed a civil lawsuit in federal court against the three officers who attempted to remove him from the street. According to Eric Seitz, an attorney who represented Haleck’s family, the case should have been “one of the easiest wrongful death cases” to win.

The officers’ attorneys, however, seized on a largely discredited, four-decade-old diagnostic theory known as “excited delirium,” which has been increasingly used as a legal defense in the last 15 years to explain how a person experiencing severe agitation can die suddenly due to no fault of the police. “The entire use of that particular theory, I think, is what convinced the jury,” Seitz told the jury.

Haleck’s case is just one of many legal battles in which the theory of excited delirium exonerated law enforcement despite mounting opposition to the term from the most powerful medical organizations. In the 2020 deaths of George Floyd in Minneapolis, Daniel Prude in Rochester, New York, and Angelo Quinto in Antioch, California, the theory was cited as a defense. It is mentioned in the ongoing criminal trial of two police officers charged in the 2019 death of Elijah McClain in Aurora, Colorado. It has enabled defense attorneys to argue that individuals in police custody died not as a result of restraint or a Taser shock, but as a result of a medical condition that can result in sudden death.

However, at its October meeting, the American College of Emergency Physicians will vote on whether to formally disavow its 2009 position paper supporting excited delirium as a diagnosis, which helped underpin those court cases. In addition, the draft resolution urges ACEP to discourage physicians who serve as expert witnesses from promoting the theory in criminal and civil trials.

“It’s junk science,” said Martin Chenevert, a UCLA Santa Monica Medical Center emergency medicine physician who frequently testifies as an expert witness. According to him, the theory has been used to cover up police misconduct. “It had an agenda.”

The resolution will not bring Haleck back, but his parents hope that it will prevent other families from going through what they have. “May that excited delirium die here,” Verdell, his mother, said.

California Democratic Gov. Gavin Newsom is considering signing into law a bill passed on September 12 that would do much the same in his state.

“If we don’t fully denounce this now, it will be there for the grasping, again,” said Jennifer Brody, a physician with the Boston Health Care for the Homeless Program who co-wrote a 2021 editorial calling on organized medicine to condemn excited delirium. “Historically, we know what happens: The pendulum swings the other way.”

The American Medical Association and the American Psychiatric Association, among others, do not recognize excited delirium as a medical condition. The National Association of Medical Examiners rejected excited delirium as a cause of death this year. There are no blood tests or other diagnostic tests that can confirm the syndrome. It isn’t listed in the “Diagnostic and Statistical Manual of Mental Disorders,” a reference book of mental health conditions, and it doesn’t have its own diagnostic code, a system used by doctors to identify diseases and disorders.

The American College of Emergency Physicians’ 2009 white paper proposing that individuals in a mental health crisis, often under the influence of drugs or alcohol, can exhibit superhuman strength as police try to control them, and then die from the condition, contributed to the argument’s pervasiveness in excessive-use-of-force cases.

The ACEP white paper has been cited in cases throughout the United States, and lawyers who file police misconduct cases have stated that courts and judges accept the science without adequate scrutiny.

According to Joanna Naples-Mitchell, an attorney who worked on a Physicians for Human Rights review of excited delirium, ACEP’s position “has done a lot of harm” by justifying first responder tactics that contribute to a person’s death. According to the group, the term has also been used in cases in Australia, the United Kingdom, Canada, and other countries.

“This is a really important opportunity for ACEP to make things right,” she said of the upcoming election.

ACEP officials declined an interview request from KFF Health News.

Beginning in the mid-1990s, the leading proponents of excited delirium conducted research with funding from Taser International, a manufacturer of police stun guns that later changed its name to Axon. The study claimed that prone restraint, in which suspects lie face down on the ground with the police officer’s weight on top of them, and Taser shocks couldn’t kill someone. The white paper was based on that research, which provided an alternative cause of death that defense attorneys could argue in court. Many emergency physicians believe the ACEP document fell short of the group’s clinical guidelines standard.

Axon representatives did not respond to requests for comment on the white paper or the upcoming ACEP vote. According to Reuters, Taser officials used the American College of Emergency Physicians’ position on excited delirium as proof that it is a “universally recognized condition” in 2017.

According to a recent review published in the journal Forensic Science, Medicine, and Pathology, there is no scientific evidence for the diagnosis, and the authors of the 2009 white paper used circular reasoning and faulty logic.

“Excited delirium is a proxy for prone-related restraint when there is a death,” said Michael Freeman, an associate professor of forensic medicine at Maastricht University in the Netherlands and one of the review’s co-authors. “You don’t find that people get ‘excited delirium’ if they haven’t also been restrained.”

According to a January 2020 report in Florida Today, 85 deaths in Florida were attributed to excited delirium between 2009 and 2019, with at least 62% involving the use of force by law enforcement. According to a December 2021 Virginia Law Review article, black and Hispanic people accounted for 56% of the 166 deaths in police custody attributed to excited delirium from 2010 to 2020.

ACEP issued a formal statement this year stating that the group no longer recognizes the term “excited delirium” and providing new guidance to doctors on how to treat patients who present with delirium and agitation in what it now refers to as “hyperactive delirium syndrome.” However, the group refrained from retracting the 2009 white paper. ACEP has taken no steps to withdraw the document or discourage defense attorneys from using it in court for the past 14 years.

Lawyers say they must continue to debunk the theory even now.

“Excited delirium has continued to come up in every single restraint asphyxia case that my partner and I have handled,” Julia Sherwin, a civil rights attorney in California, said. “Instead of acknowledging that the person died from the police tactics, they want to point to this alternate theory of deaths.”

Plaintiffs’ lawyers argue that if ACEP passes the resolution, it will be the most significant step yet toward keeping the theory out of the courtroom. The resolution requests that ACEP “clarify its position in writing that the 2009 white paper is inaccurate and outdated,” and that it withdraw approval for it.

Despite the theory’s lack of scientific support, supporters of the ACEP resolution anticipate heated debate before the vote, which is scheduled for the weekend of Oct. 7-8. According to emergency physicians, they frequently encounter patients with agitation and delirium and are sympathetic to other first responders who face the same challenges in dealing with such patients. While they have tools like sedation to help them in the emergency room, law enforcement officers are frequently forced to subdue potentially dangerous individuals without such assistance.

Most people will not die as a result of police tactics like prone restraint or Taser use, but a small percentage will.

“It’s a crappy, crappy situation when you have someone who’s out of control, who can’t make decisions for himself, and is potentially a threat somewhere,” said Jared Strote, a University of Washington emergency medicine professor. “It’s not like they’ve got a sticker on their head that says, ‘Hey, I’m in danger.'” If you restrain me, I might go into cardiac arrest.'”

Nonetheless, there is growing consensus among emergency physicians that the 2009 ACEP white paper caused real harm and injustice, and that it is time to put it behind us.

“We’ll be able to close the chapter on it and move forward to explicitly recognize that this was an error,” said Brooks Walsh, an emergency physician from Bridgeport, Connecticut, who was instrumental in bringing the resolution to a vote. “We definitely have an ethical responsibility to address mistakes or evolutions in medical thinking.”