PER CURIAM.
This is a medical-malpractice, wrongfuldeath case filed by plaintiff Charles C. Bentley against defendants David McKowan, M.D., Timothy G. Day, M.D., and Community Hospital of Andalusia, Inc. The claims against the hospital, dismissed before trial, are not before us. Bentley's complaint alleges that Drs. McKowan and Day breached the applicable standard of care in performing gastric bypass surgery on his wife, Nellie Bentley, and in failing to manage her post-operative infection and that these breaches in the standard caused her death. A jury found for the plaintiff and awarded $2 million in damages.
The defendants then filed motions for new trial, judgment notwithstanding the verdict, and remittitur. The trial judge held a hearing on these motions on March 4, 1998, and invited briefs and proposed orders from both parties. On March 19, 1998, he issued the following memorandum:
MEMORANDUM
"The Court has under submission the motions of Defendants for New Trial, Judgment Notwithstanding the Verdict, and Remittitur. The Court held a hearing on Defendants' motions on March 4, 1998 and invited briefs and proposed orders from both parties. Copies of the proposed orders are being filed with this memorandum.
"This is a case in which the Court disagrees with the verdict of the jury. Defendants correctly observe in their proposed order that the main issue in this case centers around the Defendant surgeons' handling of an infection that Mrs. Bentley developed. Plaintiff's expert opined that Defendants failed to respond to the infection (which was not caused by fault of Defendants) with proper treatment. Defendants' experts testified that Defendants handled the treatment appropriately, although the post-operative infection eventually proved fatal. The Court would have concluded from the evidence in this case that Defendants followed a recognized method of treatment which they believed best, although Plaintiff's expert believed his method of treatment was far superior. In resolving a motion for judgment notwithstanding the verdict or motion for judgment as a matter of law, the Court must view all evidence in a light most favorable to nonmovant and must entertain such reasonable evidentiary inferences as the jury would have been free to draw. Thus, the Court must recognize the jury's prerogative to accept fully the opinions of Dr. Gary Kirchner that Defendants' response to the unanticipated post operative infection suffered by Mrs. Bentley did not meet the standard of care.
"As to Defendants' motion for new trial or remittitur, the Court is prohibited by law from disturbing the verdict of the jury unless the Court concludes that the verdict is legally infirm. Other than the size of the verdict, there is little evidence that the verdict is tainted by actual bias, passion, prejudice, corruption, or other improper motive on the part of the jury.
"The Court has reviewed the verdict in view of the six factors recently outlined by the Supreme Court in [Cherokee Electric Cooperative v. Cochran, 706 So.2d 1188 (Ala.1997)], a case cited by Plaintiff although, according to Westlaw as of the date of this memorandum, it has not yet been released for publication. The six factors enumerated therein, however, appear to be consistent with the Supreme Court's past adherence to BMW of North America v. Gore, , 116 S.Ct. 1589 (1996) as well as Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), and Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986).
"The trial judge, however, understands the review outlined in Cochran to be broader in scope than the three-prong test set forth in BMW. BMW appears to focus upon (1) the degree of reprehensibility of Defendant's conduct, (2) the ratio of the punitive damages award to the actual harm inflicted on Plaintiff, and (3) a comparison of the punitive damages award here and comparable awards in similar cases.
"Were these factors the limit of the Court's inquiry, Defendants' case for a new trial or remittitur would be much stronger for the Court knows of no really similar cases from this circuit in which punitive damages of such magnitude have resulted from a physician's mere negligence, and the Court agrees fully with Defendants' suggestion that, even if there were negligence, there is no evidence that the `doctors were incapacitated, acting out of ill will, that they refused to see or treat Mrs. Bentley, or that they did anything other than try to help Mrs. Bentley and correct her problems.' Further, the Court notes that Plaintiff's expert Dr. Kirchner acknowledged at one point the honesty of Dr. McKowan's records. There is no evidence of concealment or subterfuge of the kind present, for example, in Campbell v. Williams, 638 So.2d 804 (Ala. 1994), or the unreported Moore case from this circuit referenced by Plaintiff's counsel during oral argument on March 4, 1998.
"However, the six-factor approach in Cochran, which appears to be the rule of law, requires consideration of additional factors. The first is the profitability of Defendants' conduct. There is no evidence that Defendants profited from their method of treatment as compared to Dr. Kirchner's suggested treatment.
"Second, the Court must consider the financial position of Defendants. Plaintiff cites the case of Sheffield v. Andrews, 679 So.2d 1052 (Ala.1996), for the proposition that the financial position of Defendants is the most important of the Hammond and Green Oil factors. This most important factor weighs heavily in favor of sustaining the verdict for it will have little actual financial impact on Defendants personally, as full insurance coverage has been readily acknowledged.
"Finally, the six-factor approach invites consideration of the costs of litigation. The Court knows from its experience that the bringing of a medical malpractice action is very expensive.
"Applying all six Green Oil/Hammond/BMW factors identified in Cochran, and recognizing the well established rule that the Court may not substitute its own view for that of the jury, an order denying Defendants' post-trial motions for judgment as a matter of law, new trial, or remittitur shall issue in this cause.
"DONE this the 19th day of March, 1998.
"/s/ Jerry E. Stokes
"CIRCUIT JUDGE"
On the same date, the trial court issued the following order:
"ORDER
"This matter is now before the Court on Defendants' Motions for New Trial, Judgment Notwithstanding the Verdict and Remittitur. The Defendants argue that the verdict is excessive and due to be set aside or reduced. Upon review the Court makes the following findings of fact and law.
"The Supreme Court gives guidelines for the trial Court to apply in the analysis of a case where the Defendants contend that there is an excessive award of damages. Alabama law establishes that a remittitur or a new trial should not be ordered on the grounds of excessiveness of the jury's verdict except where the Court can clearly see that the verdict is tainted by bias, passion, prejudice, corruption, or other improper motive or cause on the part of the jury. There was absolutely no testimony nor inference therefrom that the Plaintiff's decedent was guilty of any contributory negligence. The Trial Court has not been able to determine any factor which could be considered as bias, passion, prejudice, corruption, or other improper motive by the jury.
"A question has been raised with regard to jurors Pittman and Morgan in that Defendants contend the jurors in question had bad feelings and ill will toward doctors in general and Defendant Day in particular. On this point the Court finds that there was no evidence of any impropriety, bias or prejudice on the part of these jurors and that they were qualified to serve as jurors in this case. Both jurors testified that they had no bad feelings toward doctors and that no extraneous factors influenced their verdict.
"Defendants have presented no evidence that the verdict would harm them financially and this Court is mindful that evidence has been presented that the verdict will be fully covered by insurance. The Defendants admit that the verdict will not impact them financially at all. Therefore, the impact of the verdict on the Defendants is not sufficient to overcome the presumption of correctness in favor of the jury's verdict.
"The Court cannot call to mind, nor have the attorneys for the Defendants pointed out to the Court, any factor that would be construed to indicate bias, prejudice, corruption, or other improper motive or cause on the part of the jury other than the size of the verdict. The trial Court finds that the $2 million verdict is not the result of bias, passion, prejudice, corruption, or other improper motive or cause. (The trial court is frank to say that had it tried this case without a jury, it would have reached a different conclusion than the jury. However, the trial court cannot substitute its opinion for that of the jury.)
"It is, therefore, ORDERED, ADJUDGED and DECREED by this Court that the Defendant's Motions for New Trial, Judgment Notwithstanding the Verdict and Remittitur should be and are hereby denied.
"DONE this the 19th day of March, 1998.
"/s/ Jerry E. Stokes
"Circuit Judge"
The facts of the case are as follows: Mrs. Nellie Bentley, a 48-year-old woman who stood 5'4" and weighed 278 pounds, first sought advice about gastric bypass surgery from Dr. McKowan in January 1993. On March 8, 1993, Dr. McKowan, assisted by Dr. Day, performed Roux-En-Y gastric bypass surgery on Mrs. Bentley to alleviate her morbid obesity. Mrs. Bentley was discharged from the hospital two days later with no...
