Doctors Abandon a Diagnosis Used to Justify Police Custody Deaths. It Might Live On, Anyway.

Brooks Walsh hadn’t questioned whether “excited delirium syndrome” was a legitimate medical diagnosis before the high-profile police killings of Elijah McClain in Colorado in 2019 and George Floyd in Minnesota in 2020.

The emergency physician in Bridgeport, Connecticut, was familiar with the term from treating patients who were so severely agitated and combative that they needed medication just to be evaluated.

But it gave him pause when excited delirium — and not the restraint tactics used by arresting police officers — was mentioned as a possible factor in the deaths of those two Black men. That’s when Walsh took a closer look at the American College of Emergency Physicians’ 2009 position paper on excited delirium, which he and other physicians had relied on to treat such patients, then decided something needed to be done.

“I was disappointed by a lot of stuff in that paper: the quality of the evidence that they cite and just, frankly, odd language,” Walsh said.

Excited delirium is not listed in the standard reference book of mental health conditions, nor does it have its own diagnostic code under a system used by health professionals to identify diseases and disorders. No blood test or other diagnostic test can confirm the syndrome. Most major medical societies, including the American Medical Association and the American Psychiatric Association, no longer recognize excited delirium as a legitimate medical condition. One of the last medical holdouts, the National Association of Medical Examiners, rejected excited delirium as a cause of death this year.

But the American College of Emergency Physicians, the medical society representing Walsh and more than 36,000 other doctors, still hadn’t disavowed its report that gave excited delirium much of its legitimacy — until this month. On Oct. 12, the group approved a resolution that Walsh co-authored to withdraw the 2009 white paper on excited delirium, removing the only remaining official medical pillar of support for a theory, which despite being based primarily on discredited research and racial biases, has played a key role in absolving police of culpability for in-custody deaths.

“This is the membership of ACEP saying we recognize that this was wrong,” said Sophia Spadafore, an emergency physician at Mount Sinai Hospital in New York City. “And now, as an organization, we need to reckon with our history and try to make up for some of the mistakes that were made and repair some of the damage that we did.”

The vote brought some vindication to Verdell and William Haleck, whose son Sheldon died in 2015 after being pepper-sprayed, shocked with a Taser, and restrained. The Utah family lost its civil case against Honolulu police officers, whose lawyers argued the 38-year-old former Hawaii Air National Guardsman had experienced excited delirium. Watching defense experts paint their son as responsible for his own death was excruciating, his parents said.

“We were right all along,” Verdell Haleck said in response to the ACEP vote. “Now our hopes are that the term can never be used again to cause pain and suffering for another family in their pursuit of justice.”

And momentum is building. Just before the vote, California became the first state to ban excited delirium as a diagnosis and cause of death on death certificates, autopsy reports, and police reports, as well as in civil court proceedings.

Backers of the emergency physicians’ resolution hope such disavowals of the term will lead to better training and greater accountability of paramedics and police when they interact with people in mental health crises.

But it is unlikely the doctors’ vote can affect past wrongful death and criminal cases against police. And it remains unclear whether renouncing the 2009 document will prevent defense lawyers in future cases from using similar victim-blaming concepts — just with alternative terminology.

‘This Drastically Affected Our Lives’

Nearly 14 years ago, Patrick Burns, 50, died after sheriff’s deputies hogtied him and shocked him multiple times with Tasers in Sangamon County, Illinois, according to court documents. A medical examiner concluded the official cause of death was excited delirium.

Patrick Burns, pictured with his daughters Andrea (left) and Ally in an undated family photo, died in 2010 after sheriff’s deputies hogtied the 50-year-old and shocked him multiple times with Tasers in Sangamon County, Illinois. A medical examiner concluded the official cause of death was excited delirium. But this year, the county coroner changed the cause of death to homicide after the National Association of Medical Examiners decided that excited delirium should no longer be considered a cause of death.(Andrea Burns)

That diagnosis in Burns’ death stymied the family’s lawsuit against the county officers, which ended in a $40,000 settlement in 2015, said Richard Burns, one of Patrick’s brothers. The label also helped law enforcement create a picture of him as someone who was “out of control,” which ruined his brother’s reputation, Richard said. “That picture is implanted on who my brother was, and that’s not the truth.”

The term “excited delirium” dates back decades but has never been supported by rigorous scientific studies. Still, the term persisted as some of its early researchers earned money for testifying as expert witnesses in cases involving law enforcement and the company now called Axon Enterprises, which makes the Taser stun gun.

The theory suggested that agitated, delirious individuals were dying not because they had been shocked by stun guns, restrained with chokeholds, or held facedown so they couldn’t breathe, but because of this unexplained medical condition that could lead to sudden death.

Funding from Taser International, Axon’s former company name, sponsored some of the research forming the basis of ACEP’s white paper supporting the excited delirium theory, according to a 2017 Reuters investigation. The 19-person task force that drafted the 2009 paper included three people who provided paid testimony or performed consulting work for Taser, that report found. KFF Health News called eight of the task force members but none agreed to interviews. Axon executives did not respond to calls or emails seeking comment on the white paper.

That ACEP paper described patients with excessive delirium as having superhuman strength, being impervious to pain, exhibiting aggressive behavior, and making guttural sounds. To Walsh and other doctors behind the push to reject the diagnosis, those descriptions reflected age-old racist tropes of Black men as being stronger than white men or being animalistic. The incorrect notion that Black people feel less pain persists in modern medicine and has led to disparities in pain treatment.

Indeed, excited delirium has been cited more often in cases involving people of color. According to a Virginia Law Review article, at least 56% of police custody deaths from 2010 to 2020 attributed to excited delirium involved Black and Latino victims. Reviews of deaths attributed to excited delirium also found they overwhelmingly occurred when people were being restrained.

Yet the authority of the esteemed doctors group and its position paper helped cement an alternative cause of death that defense attorneys for police argued in court. And now, it’s likely too late for families who lost cases based on an excited delirium defense. Even with ACEP’s disavowal, courts may be reluctant to reopen resolved cases, said Jim Davy, a civil rights lawyer in Philadelphia.

In June, just months after the National Association of Medical Examiners decided excited delirium should no longer be listed as a cause of death, the county coroner changed Patrick Burns’ official manner of death to homicide. The coroner concluded he had suffered brain damage due to a lack of oxygen after being restrained on his stomach, not from excited delirium.

But the Illinois state attorney declined to pursue new charges against the deputies in Burns’ death.

“It’s more than just an unfortunate story,” Richard Burns said. “This drastically affected our lives.”

Racial Reckoning Sparks Shift

At a 2020 American Medical Association policy conference, medical students spurred by the racial reckoning in the wake of the police-involved deaths of Floyd and many others introduced a series of resolutions around combating racism in medicine, including one against excited delirium. But emergency physicians, who also belong to that broader physician group, objected.

“They’re regarded as the content experts on the issue, and so I think it was hard for us to combat some of those counterarguments at that time,” said Rohan Khazanchi, a medical resident and a researcher with the FXB Center for Health and Human Rights at Harvard University.

Emergency physicians see patients with agitation and delirium more often than clinicians in other specialties do and oversee emergency medical technicians and paramedics who encounter such individuals outside of a hospital.

The AMA decided to study the issue. Its subsequent report firmly sided with the medical students and, in 2021, the AMA delegates issued a strong condemnation of excited delirium as a clinical diagnosis.

But ACEP, which represents a predominantly white specialty, dragged its feet in addressing its problematic paper. Instead, the group released a new policy statement in 2021 using the term “hyperactive delirium,” saying the guidance was not meant as an update or refutation of the paper.

Jeffrey Goodloe, an emergency physician in Tulsa, Oklahoma, and one of the authors of the 2021 policy statement, said ACEP didn’t want to issue a statement without providing a clinical document to help guide physicians. And since the task force wanted to focus on clinical considerations, he said, it avoided addressing “excited delirium,” which had been under fire.

“It was being used in nonclinical ways, which no one ever really thought that it would be,” he said. “It was becoming at times a flashpoint between law enforcement and the community at large.”

This spring, the group issued a statement saying it no longer recognized excited delirium as a diagnosis but stopped short of retracting the 2009 white paper. And until this month’s vote, it hadn’t taken any steps to prevent its name and policy statement from being used by defense attorneys defending police in court cases involving in-custody deaths.

Goodloe, who now chairs the ACEP board, said it was hard for ACEP to track individual court cases and what expert witnesses were saying, especially if they were not ACEP members.

“We can’t ensure how nonmedical professionals use a document that is designed to inform and guide medical care,” he said. “I would hope that they would continue to recognize the primary intent of the paper and be very meticulous about avoiding misquoting or mischaracterizing what that paper is for.”

New Terms Arise

The remaining defenders of the term insist that excited delirium is a real condition that puts patients, physicians, and first responders at risk.

One of the 2009 white paper’s co-authors, Deborah Mash, a retired professor of neurology at the University of Miami, declined an interview but wrote in an email that the task force that penned the white paper included some of the most respected thought leaders in emergency medicine at the time, who sought to suggest best practices for treating patients with such symptoms.

Since then, she said, “banning the use of the ‘term’ has caught on with the anti-police movement.”

Mash has testified about excited delirium as an expert witness for the defense in wrongful death claims filed against Axon over the use of its Tasers.

Some lawyers who bring in-custody death cases on behalf of families believe the ACEP reversal will help wipe out a major police defense tactic.

“It has a huge impact on cases going forward, because the white paper was the main vehicle for trying to legitimize excited delirium,” said Julia Sherwin, a civil rights attorney who is representing the family of Mario Gonzalez, who died in police custody in California in 2021.

But eradicating the term “excited delirium” may not stop police from trying to use the theory behind it to justify the deaths of suspects in custody: The Minneapolis Star-Tribune reported last year that a training for the Minneapolis Police Department, which was involved in Floyd’s death, used PowerPoint slides with the words “excited delirium” crossed out and replaced with the term “severe agitation with confusion (delirium).”

Clinical documents from ACEP and other organizations have described the same cluster of symptoms at various times as hyperactive delirium, agitated delirium, or restraint-related cardiac arrest. Defense lawyers might argue the same concept using those terms or rely on other medical conditions to explain a death rather than law enforcement officials’ use of force.

“It’s so easy for them, once the excited delirium argument is dismissed, to use another kind of medical argument that’s quite similar,” said Justin Feldman, a social epidemiologist at Harvard University who studies patterns of in-custody deaths.

In April 2021, Gonzalez died after police officers in Alameda, California, restrained him on his stomach, handcuffed him, and placed their weight on him. The county coroner listed his death as a homicide. But ACEP member Gary Vilke, one of the co-authors of the 2009 white paper, said in a September 2023 deposition he believed that Gonzalez died of cardiac dysrhythmia, an irregular heartbeat.

Vilke testified in the deposition that he could make up to $50,000 as a defense expert in the case, which is set to go to trial later this year, and that he has testified in restraint or law enforcement-related cases 58 times over the past four years. Vilke declined to comment to KFF Health News on the white paper.

California’s new law lists alternative terms — hyperactive delirium, agitated delirium, and exhaustive mania — that will be restricted along with excited delirium starting in January. Nothing in the law prevents defense experts from using other medical explanations, such as cardiac dysrhythmia, for the deaths.

“People in agitated states due to cocaine, methamphetamine or untreated psychiatric illness still require help which is provided by police and first responders,” Mash, who helped create the 2009 paper, wrote in an email. “These individuals are at increased risk of sudden death regardless of what you call it.”

Still, Richard Burns, the Halecks, and others whose loved ones died during police encounters hope the ACEP vote prevents future abuses, pushes more states to follow California’s lead, and boosts police accountability.

“What needs to happen is to focus on the why, the reason, the cause,” said Burns. “The cause is the police brutality, which gets minimized when it’s being able to be hidden behind these terms.”

Chris Vanderveen, KUSA-TV’s director of special projects, contributed to this report.

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