United States Court of Appeals For the First Circuit

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"),

, 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.,

(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 review and decision.

See

When a written complaint about the conduct of a staff

member is made to the Chief Medical Officer ("CMO") or Assistant

CMO, it is then forwarded to the Hospital President.

art. X,

pt. A, § 3. Then a preliminary investigation is undertaken to

determine whether to forward the complaint to the MEC for further

consideration. Id. § 4(C).

If the complaint is forwarded to the MEC, the MEC

chairperson appoints an ad hoc peer review committee to investigate

the complaint and determine whether it has merit and, if so,

appropriate disciplinary action. Id. § 5(A). The MEC reviews any

disciplinary action that the peer review committee proposes. Id.

§ 5(B). If the recommended discipline would adversely affect the

staff member's clinical privileges, the MEC must send a copy of

the report to the Board and the staff member, who also must be

notified of their right to request a hearing. Id. § 5(C)(2).

If the staff member requests such a hearing, the

President of the Medical Staff appoints a Hearing Committee "of at

least five . . . Medical Staff members, not in direct economic

competition with the [staff member]." Id. art. X, pt. B, § 1.

"Attendance shall be limited to the Hearing Committee, the [staff

member], the involved Chief, witnesses, the officers of the Medical

- 4 - Staff, representatives of the Hospital Administration,

stenographer and legal counsel." Id. The hearing process affords

the staff member the opportunity to make opening and closing

statements, call witnesses, and present testimony and other

evidence concerning any relevant matter. Id. § 2. "Within fifteen

. . . working days after the hearing is closed, the Hearing

Committee shall issue a written recommendation describing the

conduct at issue and the sanction, if any, that is appropriate,

and explaining the reason for the recommendation." Id. § 5. The

staff member may then "file written objections to the

recommendation, detailing the reasons why they consider the

recommended findings or sanction inappropriate." Id.

The MEC reviews the "Hearing Committee's recommendation,

together with any objections thereto by the [staff member] . . . ,

to determine whether it is appropriate in light of the record."

Id. § 6. The MEC has the power to approve the Hearing Committee's

recommendation or "determine that the recommended action does not

properly respond to the evidence, and either increase or decrease

the severity of the action." Id. The MEC shall then "promptly

send a written report of its actions, which shall include an

explanation of any disagreements with the recommendations of the

Hearing Committee, to the Board." Id.

The Board "review[s] the [MEC's] decision, and the

record of proceedings, to determine whether the [MEC's] decision

- 5 - is sufficiently supported by the record and in accordance with

Hospital policy." Id. § 7. The "Board may . . . take final action

increasing or decreasing the severity of the recommended action."

Id. The Board's decision is final. See id.

B. The Investigation of Dr. Gilbert and the Resulting Board Decision

On October 11, 2017, the same day as the incident and

complaint against Dr. Gilbert, then-Hospital President Dr. Dacey

appointed Kelley Hewes, R.N., the Hospital's Clinical

Effectiveness Manager, to investigate. That same day, Hewes

interviewed the complainant, the other nurse present during the

procedure, and Dr. Gilbert.

The complainant stated again that Dr. Gilbert had

"rub[bed] his genitals" through his gown, and that in the past he

had "scratche[d] and rub[bed] himself all over, including . . .

down the front of his pants." She also reported that Dr. Gilbert,

on other occasions, had made inappropriate comments to patients

undergoing medication, including "You are really going to like

this" and "This is for your pleasure," in a tone she described as

"almost sexual" and "creepy." She said that she was "fearful of

him," and that "he [was] clearly not mentally stable."

The other nurse present during the procedure confirmed

that she also heard Dr. Gilbert rustling his gown and that she

had, on "many" previous occasions, witnessed Dr. Gilbert put his

- 6 - hands inside the front of his pants. Though she had never spoken

to Dr. Gilbert directly about those observations, she told Hewes

that she knew others had. She further reported that Dr. Gilbert

"says inappropriate comments to patients and he is always

scratching and rubbing his body." She specifically recalled that

Dr. Gilbert "creep[ily]" said, "This is for your pleasure," to a

medicated patient. She described Dr. Gilbert as "really odd" and

said that his behavior was "disgusting" and "ma[de] everyone feel

uncomfortable."

When Hewes interviewed Dr. Gilbert, he flatly denied the

allegations. She asked if he had a "nervous tic[] or a chronic

genital itch," and he responded, "[N]o, that is absolutely absurd."

Only later in the Bylaws process did Dr. Gilbert claim that he

suffers from a "chronic skin condition" that could explain his

behavior.

The next day, October 12, Hewes individually interviewed

three staff members in the Ambulatory Surgical Center, whose

observations of Dr. Gilbert's actions were consistent with the

nurse's complaint. These staff members reported Dr. Gilbert's

"hand gestures to be offensive and inappropriate," that they had

witnessed his "hands go down the front of his pants," and that

they "fe[lt] uncomfortable and unsafe and d[id] not want to work

with Dr. Gilbert." During her investigation, Hewes learned a

second complaint had been made against Dr. Gilbert six weeks

- 7 - earlier by a different nurse, which described Dr. Gilbert placing

his hands inside the front of his pants during an endoscopic

procedure, but the complaint had not been investigated.

On October 13, 2017, after receiving Hewes's three-page

investigative report, Dr. Dacey placed Dr. Gilbert on

administrative leave pending investigation. See Bylaws, art. X,

pt. A, § 7(A). Dr. Dacey placed conditions on Dr. Gilbert's

administrative leave, which the latter agreed to, including that

Dr. Gilbert (1) was to attend the Rhode Island Medical Society's

Physician Health Program ("PHP") for evaluation and treatment and

(2) depending on the outcome of the PHP evaluation, was to obtain

a proctor to monitor his professional activity, and (3) was not to

enter restricted areas of the Hospital. But according to Dr.

Dacey, Dr. Gilbert expressed "reluctance to follow through with

the PHP evaluation" and had "access[ed] and [was present] in

restricted areas of the Hospital."1 Dr. Dacey informed Dr. Gilbert

that his privileges were now suspended without condition, citing

concerns of patient safety and orderly running of the Hospital.

The complaint against Dr. Gilbert was then referred to

an ad hoc peer review committee of the MEC. See id. §§ 4-5. The

peer review committee obtained Hewes's report and questioned Dr.

1 According to the Hearing Committee Report, Dr. Gilbert also was seen sitting in his car in the Hospital's parking lot for extended periods of time, which staff members reported made them feel uncomfortable.

- 8 - Dacey on the matter. The committee decided, with MEC approval, to

continue the suspension of Dr. Gilbert's privileges without

modification. The peer review committee, in a letter dated

November 8, 2017, informed Dr. Gilbert of its decision, explaining

it was due to his "unprofessional conduct," and of his "right to

request a hearing under part B of [Article X] of the hospital

bylaws."

Dr. Gilbert requested such a hearing before a Hearing

Committee, which consisted of five physicians who were not in

direct competition with him. The Hearing Committee commenced its

review in January 2018. Both Dr. Gilbert and Kent Hospital were

represented by counsel before the Hearing Committee. Dr. Dacey

and Hewes testified on the Hospital's behalf, and Dr. Gilbert

testified on his own behalf, with the assistance of his counsel,

and introduced seven exhibits. The Hearing Committee issued its

fifteen-page Decision and Recommendation on May 11, 2018. The

Hearing Committee found that Dr. Gilbert's conduct "impacted the

orderly running of the Hospital and was otherwise disruptive,"

that Dr. Gilbert was not a credible witness, and that Dr. Gilbert

had failed to comply with the conditions Dr. Dacey imposed on the

initial suspension of his privileges. The Hearing Committee

recommended "corrective action in the form of a 29-day suspension"

on the condition that Dr. Gilbert not resume privileges at Kent

Hospital without complying with the conditions Dr. Dacey had

- 9 - previously imposed, i.e., he must "conclude the evaluation per PHP

mandates and [obtain] an approved proctor for ten clinical

procedures." The MEC voted to approve the Hearing Committee's

recommendation, which was then forwarded to the Board for final

review and action.

At a meeting on June 28, 2018, the Board addressed the

investigation of Dr. Gilbert and his status. The Board had

previously been presented with the investigation at its May 2018

meeting. The Board had before it the Hearing Committee's

recommendation and heard presentations from Dr. Jason Boudjouk, a

director of the Board, as to the facts of the matter, and Dr.

Raymond Powrie as to the MEC review. According to the minutes,

Board members were concerned about Dr. Gilbert continuing on at

the Hospital, and Board members stressed that he had failed to

comply with the conditions that Dr. Dacey imposed on the initial

suspension, including complying with the PHP mandates. Board

members were further concerned about the need to report Dr.

Gilbert's actions in order not to "kick the can down the road" and

put future patients at risk at other institutions. The Board voted

to revoke Dr. Gilbert's privileges.2 See id. Part B, § 7

2 Because Dr. Gilbert's suspension exceeded thirty days, the Hospital was required by law to report the adverse action to the National Practitioner Data Bank and the Rhode Island Board of Medical Licensure and Discipline ("RIBMLD"). See

(a)(1)(A), 11134; R.I. Gen. Laws § 5-37-9(ii).

- 10 - (empowering the Board to review the MEC decision and "take final

action increasing or decreasing the severity of the recommended

action").

II.

On September 13, 2018, Dr. Gilbert sued Kent Hospital

and Dr. Dacey on "the grounds that the Board improperly revoked

his privileges with Kent Hospital." Gilbert v. Kent Cnty. Mem'l

Hosp., No. 18-cv-00510, slip op. at 7 (D.R.I. Jan. 3, 2022). Dr.

Gilbert brought a number of state law claims against Kent Hospital

and Dr. Dacey for violations of the Bylaws and due process, breach

of good faith and fair dealing (breach of contract), defamation,

and violation of the Rhode Island Civil Rights Act for perceived

disability discrimination. He sought damages and declaratory and

Because the Hospital had previously notified RIBMLD of Dr. Gilbert's initial suspension, RIBMLD had been conducting a parallel investigation of Dr. Gilbert's conduct. It publicly issued a consent order finding that Dr. Gilbert

acted in a manner which created a disruptive environment in a clinical setting and displayed conduct that was considered offensive and therefore committed . . . [i]ncompentent, negligent, or willful misconduct in the practice of medicine which includes the rendering of medically unnecessary services, and any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing medical practice in his or her area of expertise as is determined by the [B]oard

(emphasis in original) (quoting R.I. Gen. Laws § 5-37-5.1). RIBMLD ratified its findings on January 9, 2019.

- 11 - equitable relief. After pretrial discovery, Dr. Gilbert filed a

motion for partial summary judgment on his claims for declaratory

and equitable relief, and Kent Hospital and Dr. Dacey cross-moved

for summary judgment on all counts. The district court granted

summary judgment for Kent Hospital and Dr. Dacey, holding that

they were immune from liability in damages under the HCQIA because,

on the undisputed facts, the peer review process satisfied the

statute's requirements. See id. at 12. As to all Dr. Gilbert's

claims, the district court found Kent Hospital and Dr. Dacey immune

under Rhode Island state law because, on the undisputed facts, the

Hospital's actions were taken in good faith pursuant to the Bylaws.

See id. at 13 (citing R.I. Gen. Laws § 23-17-23(b)).

A. The Board Is Entitled to HCQIA Immunity

Congress passed the HCQIA in 1986 due to the "national

need to restrict the ability of incompetent physicians to move

from State to State without disclosure or discovery of the

physician's previous damaging or incompetent performance."

(2); see Singh,

("Congress passed the

HCQIA . . . [to] respond[] to a crisis in the monitoring of health

care professionals."); Bryan v. James E. Holmes Reg'l Med. Ctr.,

(11th Cir. 1994) ("Congress enacted the [HCQIA]

. . . 'to improve the quality of medical care by encouraging

physicians to identify and discipline other physicians who are

incompetent or who engage in unprofessional behavior.'" (quoting

- 12 - H.R. Rep. No. 99-903, at 2 (1986))). Congress found that the

problem could be "remedied through effective professional peer

review," but the "[t]hreat of private money damage liability . . .

unreasonably discourage[d] physicians from participating in

effective professional peer review." 42 U.S.C § 11101(3)-(4).

Recognizing the "overriding national need to provide incentive and

protection for physicians engaging in effective professional peer

review," id. § 11101(5), Congress enacted the HCQIA to immunize

from liability for damages any professional review body3 that

performs, pursuant to statutory requirements, a professional

review action,4 id. § 11111(a)(1). HCQIA immunity extends to "any

person acting as a member or staff to the [professional review]

3 The HCQIA defines a "professional review body" as "a health care entity and the governing body or any committee of a health care entity which conducts professional review activity, . . . includ[ing] any committee of the medical staff of such an entity when assisting the governing body in a professional review activity."

(11).

4 The HCQIA defines a "professional review action" as

an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician.

(9).

- 13 - body," "any person under a contract or other formal agreement with

the body," and "any person who participates with or assists the

body with respect to the action."

§ 11111(a)(1)(B)-(D). Here,

the parties do not dispute that Kent Hospital's MEC, Hearing

Committee, and Board constitute professional review bodies under

the HCQIA, and that the Hospital's review of Dr. Gilbert's conduct

constitutes a professional review action under the HCQIA.

The HCQIA requires that a professional review action

meet four conditions for the professional review body to obtain

immunity from liability in damages under the HCQIA. See id.

§ 11112(a). The action must be taken (1) "in the reasonable belief

that the action was in the furtherance of quality health care,"

(2) "after a reasonable effort to obtain the facts of the matter,"

(3) "after adequate notice and hearing procedures are afforded to

the physician involved or after such other procedures as are fair

to the physician under the circumstances," and (4) "in the

reasonable belief that the action was warranted by the facts known

after such reasonable effort to obtain facts and after meeting the

requirement of paragraph (3)." Id. As stated in the legislative

history, the HCQIA standards "will be satisfied if the reviewers,

with the information available to them at the time of the

professional review action, would reasonably have concluded that

their action would restrict incompetent behavior or would protect

- 14 - patients." H.R. Rep. No. 99–903, at 10 (discussing the proper

test to use in applying the first HCQIA standard).

On appeal, Dr. Gilbert argues that the district court

erred because a reasonable jury could find that he had rebutted

the presumption of immunity under the fourth prong.

We review the district court's entry of summary judgment

de novo. Singh,

. "[A] professional review action

shall be presumed to have met the [HCQIA] standards . . . unless

the presumption is rebutted by a preponderance of the evidence."

(omission in original) (quoting

(a)).

"The [HCQIA] test is an objective one, so bad faith is immaterial.

The real issue is the sufficiency of the basis for the [Hospital's]

actions."

(second alteration in original) (quoting Bryan,

). In considering Defendants' motion for summary

judgment based on HCQIA immunity, we ask whether "a reasonable

jury, viewing the facts in the best light for [Dr. Gilbert],

[could] conclude that he has shown, by a preponderance of the

evidence, that . . . [D]efendants' actions are outside the scope

of [42 U.S.C.] § 11112(a)." Id. (quoting Austin v. McNamara,

(9th Cir. 1992)). Dr. Gilbert "can overcome HCQIA

immunity at the summary judgment stage only if he demonstrates

that a reasonable jury could find that . . . [D]efendants did not

- 15 - conduct the relevant peer review actions in accordance with one of

the HCQIA standards."

The Hospital contends that it revoked Dr. Gilbert's

privileges to protect patients both at Kent Hospital and "at other

institutions." Dr. Gilbert contends that the Board's revocation

of his privileges at Kent Hospital was not taken "in the reasonable

belief that the action was warranted by the facts known after such

reasonable effort to obtain facts."

(a)(4).

According to Dr. Gilbert, "the facts known" at the time of his

revocation were that: (1) there was no "evidence to support a

finding that there was a threat to patient safety," (2) he "had no

intention of ever resuming his clinical practice at Kent Hospital,"

and (3) he "was unconscious of his behavior and lacked awareness

of how his physical, chronic condition manifested itself in a work

setting amongst his colleagues." However, the Board had

significantly more information before it than Dr. Gilbert

describes, and none of these arguments have merit.

As to Dr. Gilbert's first claim, Dr. Dacey explained

that Dr. Gilbert's privileges were initially suspended "over

concerns of patient safety and orderly running of the hospital"

(emphasis added). Although the MEC subsequently determined that

"Dr. Dacey was justified in issuing an immediate suspension and to

continue that suspension until such time as Dr. Gilbert was

evaluated by the PHP," it "d[id] not believe there [was] evidence

- 16 - to support a finding that there was a threat to patient safety."

That the Board disagreed with the MEC's conditional recommendation

-- and agreed, instead, with Dr. Dacey's initial take -- does not

make the Board's decision unreasonable. The Board considered that

the MEC recognized that Dr. Gilbert had impeded the orderly running

of the Hospital and also that his conduct was otherwise disruptive.

The Board had before it for consideration the Hearing Committee

Report, which found that Dr. Gilbert's testimony often was not

credible. And the Hearing Committee found that Dr. Gilbert was

aware of the three conditions to be observed during his initial

suspension and violated those conditions. Each of those conditions

was meant to protect patient safety. The record was replete with

evidence that Dr. Gilbert had engaged in offensive behavior,

upsetting nurses during procedures on patients more than once.

The record does not permit the conclusion that the Board

insufficiently reviewed the matter before reaching its decision.

The Board received a presentation on Dr. Gilbert's matter at a

previous Board meeting. It reviewed the Hearing Committee's

Decision and Recommendation, which included numerous examples of

Dr. Gilbert disrupting Hospital operations, deviating from the

standards applicable to Hospital staff, behaving offensively, and

violating the terms of his suspension and the Code of Conduct.

The Board listened to presentations by Dr. Boudjouk, a director of

the Board, as to the facts and chronology of the matter, and by

- 17 - Dr. Powrie, then interim president of Kent Hospital, as to the

MEC's review of the Hearing Committee's Decision and

Recommendation. The Board discussed Dr. Gilbert's actions, his

failure to pursue the required psychological evaluation, and the

Board's need to protect patients and thus not evade reporting to

the National Practitioner Data Bank by instituting a suspension

less than thirty days. Dr. Gilbert can point to nothing that

indicates the Board's conclusion was based on anything but a

reasonable belief that the facts justified the action. The issue

under HCQIA immunity is whether he has met his burden to overcome

the presumption of immunity. Dr. Gilbert has not.

Dr. Gilbert's second argument is similarly misfocused.

Dr. Gilbert relies on his own testimony before the Hearing

Committee that "he ha[d] no intention of ever resuming his clinical

practice at the Hospital." However, the Board was not required to

base its decision on Dr. Gilbert's self-serving statement,

especially in light of the Hearing Committee's determination that

Dr. Gilbert's testimony was "at times incomprehensible,

incredible, and non-sensible," "not believable," "extremely

evasive," or otherwise did "not square with the probative

evidence." Moreover, the Board was clear that it was also

concerned with "the need to report the action to prevent Dr.

Gilbert from putting other patients at risk at other institutions."

In any event, the issue is not whether Dr. Gilbert would eschew

- 18 - seeking privileges at Kent Hospital again after the investigation.

Whether he would or not, the Board reasonably understood that he

might well seek hospital privileges elsewhere. The Board's

decision was reasonable because its disciplinary action ensures

prospective hospital employers will learn of Dr. Gilbert's past

conduct. Congress enacted the HCQIA in large part to prevent

evasion of reporting a disciplinary action to a future hospital

employer. See

(2).

Dr. Gilbert's third argument, based on his alleged

unconsciousness of his behavior, is similarly misfocused and also

fails for a number of reasons. The immunity test has no exception

to immunity for claims that the doctor was not conscious of his

actions. See

(a), 11112(a). The HCQIA is

focused on "protect[ing] patients" and furthering quality

healthcare irrespective of the state of mind of the subject of a

review action. Singh,

(quoting H.R. Rep. No. 99-

903, at 10). Moreover, the Hospital was not unreasonable in

rejecting such an excuse. As noted above, the Hearing Committee

found that Dr. Gilbert's testimony at times was not credible or

was incomprehensible, and he could not explain his belated excuse

for his behaviors. The Hearing Committee reasonably concluded

that Dr. Gilbert was "at times [an] incomprehensible [and]

incredible" witness, so Dr. Gilbert's assertion that he was

unconscious of his behavior should be met with skepticism. Even

- 19 - so, the Hearing Committee did take seriously Dr. Gilbert's

assertion of unconsciousness. That too supports the Board's

reasonable decision that Dr. Gilbert's privileges should be

revoked because of the risk to patient safety. And, of course,

Dr. Gilbert's failure to comply with the three conditions can

hardly be said to be unconscious. Furthermore, the Hospital's

investigation confirms that Dr. Gilbert's conduct on October 11,

2017, was part of a pattern of behavior, which had been brought to

his attention before.

Regardless of whether the Hospital complied with its

Bylaws, which it appears to have done, compliance with bylaws is

not the statutory test. See Poliner v. Tex. Health Sys.,

(5th Cir. 2008) ("[F]or the purposes of HCQIA immunity

. . . what we consider is whether these 'peer review actions'

satisfy the HCQIA's standards, and not whether the [challenged

actions] satisfy the bylaws.").

Dr. Gilbert has failed to "demonstrate that a reasonable

jury could find that [Kent Hospital] could not have 'concluded

that [its] action would restrict incompetent behavior or would

protect patients.'" Singh,

(second alteration in

original) (quoting Egan v. Athol Mem'l Hosp.,

(D. Mass. 1997), aff'd per curiam,

(1st Cir. 1998)

(unpublished table decision)). Kent Hospital is thus immune under

the HCQIA. That disposes of Dr. Gilbert's claim for damages on

- 20 - all but his cause of action under the Rhode Island Civil Rights

Act. See

(a)(1) (providing that the HCQIA "shall

not apply to damages under any law of the United States or any

State relating to the civil rights of any person or persons").

B. The Board Is Entitled to Immunity Under R.I. Gen. Laws § 23-17-23(b)

Immunity under Rhode Island General Laws § 23-17-23(b)

is broader than federal immunity, extending to all causes of action

of any nature arising from hospital disciplinary actions

undertaken for good cause and in good faith. Because HCQIA

immunity covers only liability for damages and Dr. Gilbert also

seeks declaratory and equitable relief, we review de novo the

district court's summary judgment determination that Kent Hospital

and Dr. Dacey are immune under Rhode Island state law. See Singh,

; see also Cohlmia v. St. John Med. Ctr.,

(10th Cir. 2012) (explaining that "HCQIA grants immunity

only against . . . monetary damage award[s]").

R.I. Gen. Laws § 23-17-23(b) provides that "[t]here

shall be no liability on the part of and no cause of action of any

nature shall arise against any hospital, hospital board of

trustees, or any hospital medical staff committee, where

instituted by hospital by-laws, for any action taken in good faith

in carrying out" the authorization in § 23-17-23(a). Rhode Island

General Laws § 23-17-23(a) provides that the "board of trustees of

- 21 - a hospital or other appropriate authority licensed pursuant to the

laws of the state is authorized to suspend, deny, revoke, or

curtail the staff privileges of any staff member for good cause

. . . for unprofessional conduct." See also id. § 5-37-5.1

(providing unexhaustive listing of unprofessional conduct

amounting to good cause under § 23-17-23(a)). Dr. Gilbert argues

that the Board acted in bad faith and that there is "a genuine

issue of material fact regarding whether the Board had good cause

for the revocation of [his] privileges." Again, we disagree. On

the undisputed material facts, the Board's decision was taken in

good faith and for good cause.

Dr. Gilbert points to no evidence in the record that

would lead a reasonable jury to conclude that the Board acted in

bad faith. He merely advances an argument in his brief that the

"Board did not act with an honest intention to ascertain the facts

in this matter," and "one reasonable inference drawn from the

record is that the Board could not have had an honest belief that

revoking [his] privileges would advance patient safety." We have

already disposed of this argument. See supra Section II.A.

The Board had good cause for the revocation of Dr.

Gilbert's privileges. Dr. Gilbert argues that there was no good

cause for the Board's revocation of his privileges because his

conduct does not fall within one of Rhode Island state law's

enumerated grounds for good cause revocation. See R.I. Gen. Laws

- 22 - § 5-37-5.1. But the list of grounds that Dr. Gilbert references

is not exhaustive, so his conduct does not need to fall within one

of the enumerated grounds to satisfy the state law good-cause

requirement. See id. (providing that set of relevant grounds,

"includes, but is not limited to," the listed items); id. § 23-

17-23(a) ("[G]ood cause . . . shall include the grounds specified

in § 5-37-5.1 for unprofessional conduct." (emphasis added)).

Again, for reasons already explained, the Hospital had good cause

to revoke Dr. Gilbert's privileges.

C. Dr. Gilbert's Claims Against Dr. Dacey

Because Dr. Dacey was a member of the staff of Kent

Hospital during part of the investigation into Dr. Gilbert and

took part in the review process, see supra Section I.B, he shares

the Hospital's immunity under federal law. See

(a)(1)(B), (D) (immunizing from liability "any person

acting as a member or staff to [a] [professional review] body" and

"any person who participates with or assists the body with respect

to the action"). Citing R.I. Gen. Laws § 23-17-23(b), Defendants

contend that Dr. Dacey also shares the Hospital's immunity under

state law in both his individual and official capacities. Dr.

Gilbert contends only that he "has put forth evidence that

Defendants are not entitled to state law immunity." But, as

explained above, we disagree with Dr. Gilbert on that score and

conclude that the Hospital is entitled to state law immunity.

- 23 - Because Dr. Gilbert does not argue that Dr. Dacey's immunity status

is or should be different from the Hospital's, he has waived any

argument as to Dr. Dacey's immunity under R.I. Gen. Laws § 23-17-

23(b). See United States v. Zannino,

(1st Cir.

1990).

III.

For the foregoing reasons, the district court's judgment

is affirmed. Costs are awarded to Kent Hospital and Dr. Dacey.

- 24 -