No. 22-1118

RICHARD GILBERT, Medical Doctor,

Plaintiff, Appellant,

v. KENT COUNTY MEMORIAL HOSPITAL; MICHAEL DACEY, Medical Doctor, in his individual capacity and as President of Kent Hospital,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Jeffrey S. Brenner, with whom Caitlyn Smith and Nixon Peabody LLP were on brief, for appellant. Robert M. Duffy, with whom Eric E. Renner and Duffy & Sweeney, LTD. were on brief, for appellees.

March 31, 2023 LYNCH, Circuit Judge. Richard Gilbert, M.D., brought suit in federal court seeking damages and injunctive relief against Kent County Memorial Hospital (the "Hospital" or "Kent Hospital") and Michael Dacey, M.D., in his individual capacity and as President of Kent Hospital. The suit challenges the Hospital Board of Trustees' ("Board") revocation of Dr. Gilbert's privileges at Kent Hospital.

The district court entered summary judgment in favor of Defendants, holding that Dr. Gilbert had not rebutted the presumption that Defendants are immune from liability in damages under the Health Care Quality Improvement Act ("HCQIA"), 42 U.S.C. §§ 11101-11152, and that Defendants are also immune from suit under Rhode Island state law, see R.I. Gen. Laws § 23-17-23(b). Dr. Gilbert appeals. We affirm the judgment.

I.

We describe the facts giving rise to the lawsuit in a light as favorable to Dr. Gilbert as the record will reasonably allow. See Singh v. BlueCross/BlueShield of Mass., Inc., 308 F.3d 25, 28 (1st Cir. 2002).

Dr. Gilbert has been a licensed physician in Rhode Island since December 30, 2014, specializing in gastroenterology. In January 2015, he obtained privileges to treat patients in the Ambulatory Surgical Center at Kent Hospital, located in Warwick, Rhode Island. On October 11, 2017, the Hospital received a written

- 2 - complaint regarding Dr. Gilbert's behavior during a procedure. A staff nurse present during the procedure reported to her superiors that she saw Dr. Gilbert touch his genitals over his gown several times. She also heard him rustling his clothes while he was behind her, and she turned around to see that his hand was inside the front of his pants. The nurse, visibly upset and crying, left the room and reported what she had observed and her distress. She stated that Dr. Gilbert's behavior made her feel "uncomfortable, threatened and unsafe," and that she "d[id] not feel safe working with [Dr. Gilbert]."

This written complaint triggered an investigation, which led to Dr. Gilbert's suspension. The investigation was followed by hearings and the taking of testimony from Dr. Gilbert and others as set forth in the Kent Hospital Medical Staff Bylaws (the "Bylaws"). See Bylaws, art. X (2010). The culmination of these procedures was the Board's decision to terminate Dr. Gilbert's privileges at Kent Hospital.

A. Kent Hospital's Bylaws Process

We briefly sketch out the process followed as to Dr. Gilbert under the Bylaws.

Kent Hospital's Bylaws process includes the following phases: (1) receipt of a complaint, (2) preliminary investigation, (3) ad hoc peer review committee review, (4) Medical Executive Committee ("MEC") review of the peer review committee's decision,

- 3 - (5) Hearing Committee review, (6) MEC review of the Hearing Committee's decision, and (7) final Board rev