(Dissenting).
I dissent. I would reverse the trial court’s granting of a new trial as constituting an abuse of discretion for the following reasons:
1. The defendant did not provide substantial competent testimony in support of a verdict in his favor.
2. The damages awarded by the jury were not so excessive as to indicate passion or prejudice.
3. The trial court failed either in the record or in its order to articulate the factual basis for its grant of a new trial.
4. The record sufficiently demonstrates the trial court’s hostility to plaintiff’s cause of action to overcome the presumption that its discretion was fairly exercised.
A physician’s diagnosis demands the same duty of care as does the actual treatment of the patient. My review of the record satisfies me that a verdict for defendant would be inconsistent with the overwhelming weight of evidence that showed defendant breached his duty of care in recommending this drastic surgery.
The majority states that the testimony of expert witnesses was in conflict regarding the standard of care for diagnosing the plaintiff’s condition as requiring a subcutaneous mastectomy. The opinion does not specify the nature of those conflicts, and my examination of the expert testimony leads to the conclusion that the experts were in substantial agreement on the standard of care. There was gross conflict, however, as to whether defendant complied with the standard.
Defendant’s first expert to testify, Dr. Fairbanks, stated at trial that the following indications collectively provided a reasonable basis for the surgery: 1) a genetic predisposition for breast cancer; 2) a histo-logic showing (examination of tissue microscopically); 3) patient symptoms such as pain, chronic infection, silicone injection mastopathy; and 4) cancerphobia, particularly where there are multiple biopsies. Later Dr. Fairbanks departed somewhat from the standards he had testified to earlier and stated that a biopsy or mammogram was not a necessary step in the physician’s diagnosis and that the defendant complied with the standard of care in the community. Aside from this inconsistent testimony as to whether a histologic showing is a necessary indication, the other necessary indications Dr. Fairbanks enumerated were not present.
The majority’s summary suggests that the plaintiff told defendant there was a “history of breast cancer” in her family. The record is plain. The plaintiff told the defendant she thought her grandmother might have died of “cancer,” but she did not know what kind, and her mother had fibrous breast tissue biopsied at least once with no malignancies. This is the extent of the medical history the defendant relied on in determining the plaintiff had a “genetic predisposition” for breast cancer. Dr. Rasmussen’s notes are not relevant. The defendant never conferred with Dr. Rasmussen. Also, while defendant’s typed record indicated that plaintiff’s grandmother died of “breast cancer,” his handwritten notes, taken during examination, merely stated “cancer.” Plaintiff unsuccessfully tried to introduce at trial her grandmother’s death certificate, which listed cause of death not as cancer of the breast, but of the cervix.
Plaintiff’s alleged psychosomatic symptoms were unaccompanied by multiple biopsies, as Dr. Fairbanks testified should be present as part of the indication. Further*536more, plaintiffs “cancerphobia” was diagnosed by the defendant, a plastic surgeon, after a 45-minute visit with the patient, which included a physical examination and a discussion about how she would pay for the operation. Defendant made no attempt to clarify the nature of the plaintiffs “can-cerphobia.”
One particularly crucial instance when failure to consult [a specialist] prior to operating — either by a general practitioner or a surgeon — should constitute negligence occurs when a patient requests an operation in order to satisfy a psychological need. Medical studies have revealed that some individuals create psychological illness and seek an operation to alleviate this psychoneurotic condition.
Unnecessary Surgery: Doctor and Hospital Liability, 61 Geo.L.J. 807, 813 (1973) (footnote omitted).
Plaintiff did not exhibit the symptoms Dr. Fairbanks testified might provide additional support for a diagnosis that the plaintiff had an unusual possibility of cancer in the future. To find support in Dr. Fairbanks’ testimony for a verdict for the defendant, the jury would have had to ignore serious inconsistencies in his testimony and accept only his summary conclusion.
Defendant’s second expert, Dr. Dingman, in concluding defendant met the accepted standard of care in recommending the surgery, merely responded to a hypothetical that was not supported by the facts of the case.
Defendant’s own testimony further diminished support for a verdict in his favor. At one point, he testified that the only indication he relied on was the risk of cancer from plaintiff’s grandmother. At another point in his testimony, he stated that he relied on plaintiff’s having fibroadeno-ma, but he also admitted a physician cannot detect fibroadenoma by merely palpating a patient’s breast, which was all he did in this case. Indeed, he testified that he told plaintiff she might return to another doctor to have a biopsy conducted to determine if she had fibroadenoma. Defendant also testified he would perform a subcutaneous mastectomy on a 25-year-old woman solely because she feared cancer. Finally, two pathologists testified that an examination of plaintiff’s breast tissue performed after surgery did not indicate that plaintiff had an unusual possibility of developing cancer in the future.
I would also reject the second ground for the trial court’s granting of defendant’s motion for a new trial, i.e., that the jury awarded excessive damages indicating passion or prejudice. The jury awarded the plaintiff $180,000 in general damages, $12,- ' 500 for special damages and $7,500 for loss of wages. As the majority notes, general damage awards in the range of or greater than $180,000 have been held not to be excessive in malpractice cases involving breast surgery.
A review of the record indicates such an award was justified. After the subcutaneous mastectomy, plaintiff experienced severe pain and firmness in her breasts. She was at her home, having been handled as an outpatient for the surgery, when the defendant was notified of her distress. He authorized her roommate to administer Thorazine by injection to provide relief from the post-operative pain, relying on her roommate’s experience as a flight attendant. Two days later the plaintiff was examined in the defendant’s office. Defendant detected that plaintiff had lost some fluid from the breast implants because the skin over the upper half of each breast was rippling and wasn’t filled out by the implants. He recommended a second operation.
When plaintiff’s employer contacted defendant with regard to the second operation, defendant indicated that more breast tissue was removed at the first operation than anticipated, the implants lost fluid resulting in a post-operative deformity where the cavities were not filled out, and larger prostheses were needed. A third operation was required because plaintiff’s breasts became seriously infected. Both implants were removed from plaintiff's breasts, leaving her in a deformed condition for several months. In a fourth operation, *537new implants were inserted in her breasts. The fifth operation was required to correct a serious asymmetry between plaintiff’s breasts and to alleviate substantial pain resulting from plaintiffs earlier operations. Her breasts remain asymmetrical and scarred. She is unable to breast feed her children.
Defendant refers to discrepancies between the verdict on special damages and the evidence introduced at trial. Those discrepancies are minor. (There appears to be $3,000 extra for medical expenses and $52 extra for lost wages.) These differences do not warrant setting aside a jury verdict. Bodon v. Suhrmann, 8 Utah 2d 42, 327 P.2d 826 (1958). The trial court should have modified the verdict for special damages consistent with the evidence, and this Court can do so on appeal. Jensen v. Denver & Rio Grande R.R. Co., 44 Utah 100, 138 P. 1185 (1915).
As an additional basis for reversing the trial judge’s ruling in this case, I rely on the fact that he failed, either in the record or in his order, to articulate the factual basis for his ruling. The standard of review to which this Court has adhered in reviewing grants of new trials is one of extreme deference to the discretion of the trial court, which is in contravention of our usual deference to the verdicts of juries on questions of fact.
In order to justify such contravention, we should hold that the factual reasons for the trial judge’s ruling must either appear on the face of the record or be clearly articulated by the judge in his order. Such reasons might include the judge’s strong impressions regarding credibility of witnesses, his belief that an error of law was committed by the jury, or any other cause for determining that an injustice had been done by the jury’s verdict. However, a trial judge’s discretion ought not to be exercised arbitrarily and capriciously, as I believe was the case here. His order merely recites the language of the rule and does not specify any particular aspects of this trial or the verdict that caused him concern. Considering the trial judge’s unusual power to intervene in the results of our jury trial system under the new-trial rule, a requirement that the judge openly explain the reasons for the exercise of his discretion is appropriate and perhaps necessary to prevent not only actual arbitrariness, but also apparent arbitrariness.
Finally, I disagree with the majority’s rejection of plaintiff’s argument regarding possible bias on the part of the trial court as it relates to the exercise of discretion in the granting of a new trial. I believe the record is sufficiently plain in demonstrating the court’s hostility to plaintiff’s cause of action to overcome the presumption that its discretion was fairly exercised.
The trial judge, in a pretrial exchange with counsel, remarked that of thirteen medical malpractice cases that had come before him two were directed verdict cases and eleven had resulted in no causes. Thereafter, during trial, the court:
1. Interrupted and criticized plaintiff’s counsel for mentioning in his opening statement his projection of the amount of damages that would be proved at trial.
2. Refused to permit plaintiff’s counsel to show photographs, which were admitted in evidence, to the jury to illustrate the testimony of the witnesses at the time such testimony was being given.
3. Refused to permit plaintiff’s counsel to use illustrations of portions of technical treatises (posters) in evidence so that the jury could read along with the text while the text was being used to cross-examine experts.
4. Repeatedly sustained defense counsel’s objections, often incorrectly, and on one occasion himself substituted an incorrect ground for the one (incorrect also) that defense counsel had offered.
5. Refused to let plaintiff testify and have admitted documentation about her actual medical expenses, insisting that those amounts would have to be verified as “reasonable” by some independent witness. He later refused to let plaintiff’s expert testify about reasonableness.
*5386. Refused to permit use of scientific publications in cross-examination of defendant because they were not authenticated by defendant (who testified, “I do not consider any writer, any author authoritative”) and then refused to permit plaintiffs counsel to authenticate the publications with his own expert witness.
7. Refused to permit plaintiffs expert to answer a question about his opinion of whether defendant was “negligent” and later permitted defendant’s experts to answer whether defendant had “met the standard of care.”
In conclusion, I would order that the jury’s verdict be reinstated; that within a reasonable time appellant file in this Court a remittitur in the sum of $3,090.43 and accept a net verdict of $196,909.57; and that the judgment be modified accordingly.