The Detroit News
(TNS)
TROY, Mich. — The owner and three employees of a Troy medical facility where a 5-year-old boy died in a hyperbaric oxygen chamber explosion earlier this year were arraigned Tuesday on criminal charges, accused of disregarding safety protocols and failing to follow the manufacturer's recommended guidelines for that type of treatment.
Tamela Peterson, owner and founder of the Brighton-based Oxford Center where the Jan. 31 explosion occurred, was formally charged in Troy's 52-4 District Court on second-degree murder and involuntary manslaughter charges in connection with the death of Thomas Cooper of Royal Oak. Gary Marken, the Oxford Center's primary manager, and safety director Jeffrey Mosteller also were arraigned on the same charges.
Aleta Moffitt, the operator of the hyperbaric chamber when it exploded on Jan. 31, also was arraigned on an involuntary manslaughter charge, along with a charge of intentionally placing false information on a medical record.
Peterson was given a $2 million bond, while Mosteller and Marken were given $250,000 bonds and Moffitt $100,000. Each was given similar conditions, including that they have no contact with each other, not return to the Oxford Centers in Troy or Brighton, wear GPS tethers and cease operation of hyperbaric chambers.
Magistrate Elizabeth Chiappelli said she cannot risk what happened to Thomas happening to anyone else. As conditions of their bonds, Marken, Moffitt and Mosteller are not allowed to seek employment at any entity that provides hyperbaric chamber treatments or the use of oxygen.
"This case, by the very nature of the allegations, a hyperbaric chamber with high saturations of oxygen, is essentially a ticking time bomb. If that unit is tampered with, it becomes Russian roulette for whoever gets into that chamber," Chiappelli said during Marken's arraignment.
All four defendants pleaded not guilty.
Attorney General Dana Nessel, whose office is handling the case, alleges the Oxford Center took multiple shortcuts and disregarded safety measures in the name of "so-called treatment."
"Due to many failures by men and women who would call themselves medical professionals and wanton or willful disregard for the likelihood that their actions would cause the death of a patient, 5-year-old Thomas Cooper was killed when a fire erupted inside the pressurized, pure oxygen environment inside the chamber," said Attorney General Dana Nessel during a virtual press conference before Tuesday's arraignment. "The Oxford Center routinely operated sensitive and lethally dangerous hyperbaric chambers beyond their expected service lifetime and in complete disregard of vital safety measures and practices considered essential by medical and technical professionals."
Thomas was undergoing treatment in a hyperbaric chamber — authorities haven't disclosed why he was getting treatment — when the device exploded. Thomas' mother was standing near the chamber at the time, and her arms were injured.
Raymond Cassar, Marken's attorney, said Tuesday he hasn't seen the police reports yet but the charges have come as a "huge shock" to Marken, 65, and his family.
"Gary was not involved in the overseeing of these hyperbaric chambers, so we're concerned as to why they would charge him with this, but obviously we have to see the police reports," Cassar said.
Neither charge is appropriate, said Cassar, who added that the second-degree murder charge in particular doesn't make sense. The explosion was an accident, not an intentional act, he said. Second-degree murder carries a penalty of up to life in prison.
"This was, in fact, a tragic accident, and our thoughts and our prayers really do go out to the family of this little boy," Cassar said. "We realize that everyone wants answers as to how this happened, including us. We want to see what these experts have come up with, but we do not have those reports at this point in time."
Hyperbaric chamber safety standards allegedly disregarded by the Oxford Center on the day Cooper died include daily maintenance checks, annual safety inspections and the use of a grounding strap for patients, according to Nessel. There also was no medical doctor or safety supervisor on site when Cooper was undergoing treatment, and his treatment was not performed by a licensed technician, the attorney general said.
At the arraignments, Assistant Attorney General Chris Kessel alleged that Marken, with the permission of Peterson, tampered with the hyperbaric chamber that exploded to make it appear safer than it was. The number of cycles recorded in the chamber was less than had been previously recorded, Kessel said.
"It was this one specific machine that multiple witnesses have identified that this defendant was working on, rolling back those numbers in essence — I hesitate to use this phrase here, but I don't know one that's more applicable — he was literally making this a ticking time bomb," Kessel said.
But Marken's attorney said he had not been to the Troy facility in three years.
"I don't know what proofs they're going to be able to show with respect to rolling back these, whatever, these tickers with these things, but I think that they've got a heavy burden to show that he knowingly did this, and that he knowingly knew there was a risk of harm, of death in a case like this," Cassar said.
The hyperbaric chambers at the Troy and Brighton Oxford Center facilities have not been used since the explosion, and will continue not to be utilized, Peterson's attorney Gerald Gleeson said. He also said that both of Peterson's parents used the chambers regularly.
"I think that tends to discount the idea that she was somehow operating these with reckless abandon, and putting her own family members in," Gleeson said.
But Kessel claimed that Mosteller, the safety director, conducted his own experiments to prove the safety of the chamber that exploded.
"These were his own experiments, none of which were actually recognized by any sort of scientific body. They were not peer reviewed, and the people's position is they were just designed to hide the actual safeguards that were being disregarded," Kessel said. "These experiments were meant to show the under employees that what they were doing was safe."
The Food and Drug Administration regulates the oxygen used in hyperbaric chambers and the Undersea and Hyperbaric Medical Society offers accreditation for centers that use the devices, while the Michigan Licensing and Regulatory Affairs oversees the licensing of medical professionals like those employed at the Oxford Center, Nessel said. The Oxford Center employs one medical doctor who was not on site the day of the explosion, she said.
"Michigan law doesn't require any oversight over the use of hyperbaric chambers," Nessel said.
As of Feb. 28, the Oxford Center was not on the Undersea and Hyperbaric Medical Society's list of accredited facilities.
After the arraignment, Marken's attorney said he was "stunned" at the high bond his client was issued, and said it was a "slap in the face" when Marken was arrested Monday morning after cooperating fully with police during their investigation.
Moffitt's attorney Ellen Michaels said the high bond was similarly unexpected for her client. Moffitt was a technician operating the chamber, and the last one to see Cooper before he died, but had no decision-making role in the company, Michaels said.
"In this situation where this chamber exploded, we have yet to see how much was even left to determine the cause of the fire," Michaels said. "We saw the (attorney general's) press conference earlier today, and they put out there for the world to hear that they know exactly how this fire started, show me the money."
The purpose of bond is not to punish, but to ensure protection of the public and the defendant's reappearance in court, Chiappelli said. She said Peterson threw safety and caution to the wind, instead running her business with the goal of making money.
"This is a very serious case. ... It involves the death of a young child in a horrific way, and I'm not going to use the term tragic, because I think a lot of what we're looking at was disregard of safety protocols that created the risk of this happening," Chiappelli said during Peterson's arraignment.
Hyperbaric chambers create an environment of pure oxygen at higher than normal air pressure, according to the Mayo Clinic. Cooper was killed when a single spark appeared to have ignited the chamber, Nessel said.
Danielle Hagaman-Clark, the attorney general's criminal bureau chief, said prosecutors don't believe the hyperbaric chamber that exploded had a fire suppression system.
Nessel said the Oxford Center operated the hyperbaric chambers beyond the manufacturer's intended term of use on children to provide "unaccredited and debunked, so-called treatments."
Authorities said they do not know for what the boy was being treated in the hyperbaric chamber, a pressurized medical device used to provide oxygen therapy to patients. The FDA has approved such chambers for use in treating 13 conditions, including burns, carbon monoxide poisoning, decompression sickness and gas gangrene. The Oxford Center advertises hyperbaric oxygen treatment for over 90 different conditions, including attention deficit disorder and traumatic brain injuries.
"To make money as a business, the Oxford center operated these machines and offered unfounded treatments to patients when medical science contradicted these uses of their services," Nessels said.
Last month, Cooper's family said it retained Southfield-based Fieger Law to represent them. The boy, who loved playing video games like Minecraft, was planning to try mountain BMX racing and karate this summer. Managing partner at Fieger Law James Harrington previously called his death an "immeasurable loss."
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