230 A.2d 883 (1967)
Barbara FARGNOLI, p.a.
v.
Albert CECIL et ux.
Joseph FARGNOLI
v.
Albert CECIL et ux.
Appeal Nos. 98, 99.
Supreme Court of Rhode Island.
June 28, 1967.
Temkin, Merolla & Zurier, Amedeo C. Merolla, Providence, for plaintiffs.
John A. Mutter, Providence, for defendants.

OPINION
ROBERTS, Chief Justice.
These are two civil actions brought pursuant to the provisions of G.L. 1956, § 4-13-16, to recover for personal injuries and for medical expenses incurred as a result of an attack by a dog upon the plaintiff Barbara Fargnoli, minor child of the plaintiff Joseph Fargnoli. The actions were tried to a justice of the superior court sitting with a jury. At the conclusion of the introduction of evidence and while the plaintiffs' counsel was arguing to the jury, the defendants' counsel objected to certain comment made in the course thereof. The trial justice immediately gave the jury a cautionary instruction to disregard such remarks. However, at the conclusion of argument, he heard further argument on the defendants' motion to declare mistrial on the ground that the prejudice inhering in the comment could not be cured by any cautionary instruction. The trial justice denied the motion to pass the case and submitted it to the jury.
The jury thereafter returned a verdict for the minor plaintiff in the amount of $5,000 and a verdict for consequential damages for the plaintiff father in the amount of $1,500. A motion for a new trial was made by defendants in each case. This motion in the case of the minor plaintiff was denied, but in the case of the plaintiff father a new *884 trial was granted conditionally subject to the filing by plaintiff of a remittitur in the amount of $388.70. Such a remittitur was timely filed. The defendants are now in this court prosecuting their appeals from the denial of their motions for mistrial and the denial of their motion for a new trial in each case.
We agree with counsel for defendants that the only issue here is raised by their exceptions to the denial of their motions to pass, and that is whether the trial justice was in error in holding that his cautionary instruction to the jury to disregard the comment of plaintiffs' counsel sufficiently purged the comment of its prejudicial character. It is clear that if invincible prejudice inhered in the remarks of plaintiffs' counsel, defendants had the right to have the case taken from the jury in order to avoid an infringement of their right to a fair and impartial trial. The question is then whether the prejudice, if any, inhering in the comment was neutralized by the cautionary instruction given the jury at the time defendants' counsel raised objection.
The record discloses that plaintiffs' counsel, while summing up for the jury, was interrupted by defendants' counsel, who objected to the remarks that he had just addressed to the jury. These remarks do not appear in the record, but, as they are summarized in defendants' brief, plaintiffs' attorney "* * * had deliberately invited liability on the Defendant wife and alleged that the purpose thereby was to invite a verdict against the wife alone, because she was not the head of the household; he further called to the attention of the jury that the Defendant husband was the `breadwinner,' and that if a judgment was obtained against the Defendant wife and the Defendant wife alone, the Plaintiffs would have a great deal of trouble obtaining satisfaction on such a judgment."
We would say parenthetically that we find it difficult to perceive that the remarks made by plaintiffs' counsel in the context of the case were inherently prejudicial to defendants. If we assume, however, without deciding that in the context in which they were made the remarks were prejudicial, it is our opinion that such prejudice was neutralized by the cautionary instruction of the trial justice given the jurors immediately after objection to the remarks had been made.
The defendants rely primarily on Pontes v. United Electric Rys., 54 R.I. 139, 170 A. 674, which they contend lays down the rule that "Where a case is close on the question of liability, the effect of a prejudicial statement is not removed from the minds of the jurors, by the instruction of the Court to disregard it." This, however, is not precisely the rule stated in that case. It is clear when the case is examined that the court was dealing with that case on the facts therein contained. What the court actually held was: "The case was a close one upon the question of liability and in our opinion the effect of the prejudicial statement was not removed from the minds of the jurors by the instruction of the trial justice to disregard it." This was, in our opinion, an ad hoc ruling, and we can hardly agree that the court, by the language used, intended to establish a rule of law of general application based on so vague a standard as "* * * a close one upon the question of liability."
An examination of Pontes discloses that the remarks upon which the claim of prejudice rested were made by the plaintiff's attorney in the presence of the jury as he persisted in arguing that certain evidence of the defendant's prior conduct was admissible even after the court had ruled that such evidence was inadmissible. At page 141, supra, 170 A. at 674, we said: "Plaintiff's attorney should have accepted without argument the court's ruling excluding the question. * * * If he had done so, in view of the negative answer of the witness the question might be held to be non-prejudicial." In short, the court held that the invincible *885 prejudice disclosed by the facts in Pontes was a result of the plaintiff's persistence in contending that the excluded evidence was in fact admissible in the presence of the jury.
The facts in this case, in our opinion, call for an application of the rule laid down by this court in York v. Ventilato, 80 R.I. 192, 94 A.2d 820. In that case the plaintiff's attorney in an action for negligence stated, in summing up for the jury, that after the accident had occurred, the plaintiff went home, while the defendant "* * * by request went to the police booth." The defendant moved to pass the case on the basis of the prejudice inhering in such a comment. The court denied this motion to pass, and this court held that no error inhered in this denial of the motion. This court said, supra, at page 197, 94 A.2d at 823: "It is clear that the trial justice in making his ruling on defendant's motion was of the opinion that the portion of the attorney's argument complained of was not of such a nature and was not in itself so prejudicial to defendant as to require the court to take the case from the jury and pass it. He was presiding at the trial and his decision on such a motion is entitled to weight in this court, especially where the record as here does not show the exact remark of plaintiff's attorney."
It is our opinion then that the language quoted from York v. Ventilato, supra, reflects the rule applicable to these cases in general. When a trial justice, who heard the comment alleged to be prejudicial, determines that it either did or did not prejudice the adversary party or that, if prejudice did inhere therein, it was cured by an adequate and appropriate instruction given by him to the jury, his decision on the motion to pass will be given substantial weight by this court on review and will not be reversed unless clearly wrong.
In the instant case the court heard the comment made and was cognizant of the circumstances in which it was made. It is clear that he deemed it sufficient to neutralize the prejudice to instruct the jury immediately, as he did, to disregard the comment, that they were to decide the case on the evidence adduced through the witnesses, and that the ability to satisfy a judgment was a matter of no concern to the jury. In the circumstances we think that the rule stated in York v. Ventilato, supra, is applicable, and we find no error in the action of the trial justice.
Because the defendants in their brief expressly state that the ground of their motion for a new trial was "* * * primarily based upon the Trial Justice's refusal to declare a mistrial," there is no necessity for discussing that exception.
The appeals of the defendants are denied, and the judgments appealed from are affirmed.


767 F.2d 690
ART JANPOL VOLKSWAGEN, INC., d/b/a Art Janpol Motors,Plaintiff-Appellee Cross-Appellant,v.FIAT MOTORS OF NORTH AMERICA, INC., Defendant-AppellantCross-Appellee.
Nos. 83-1401, 83-1526.
United States Court of Appeals,Tenth Circuit.
July 10, 1985.

Oliver Burton Cohen of Cohen & Aldridge, P.A., Albuquerque, N.M., for plaintiff-appellee cross-appellant.
Jeffrey E. Livingston of Pavia & Harcourt, New York City (David A. Botwinik and Richard L. Mattiaccio of Pavia & Harcourt, New York City, and Nicholas R. Gentry of Johnson and Lanphere, P.C., Albuquerque, N.M., with him on brief), for defendant-appellant cross-appellee.
Before SETH, LOGAN, and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.

1
Art Janpol Volkswagen, Inc.  ("Janpol"), a New Mexico corporation, brought this diversity action against Fiat Motors of North America, Inc.  ("Fiat"), a New Jersey corporation, alleging breach of contract and seeking monetary and injunctive relief.  After a bench trial on the merits, the district court entered judgment in favor of Janpol, and awarded compensatory and punitive damages.  The court denied attorneys fees to Janpol, and both parties appeal.  We affirm in part and reverse in part.

I.
BACKGROUND

2
Janpol is an automobile dealer in Albuquerque, New Mexico, engaged in the sales of various makes of imported cars.  Fiat is the North American importer and distributor for Fiat cars manufactured in Italy.  In 1977 Janpol and Fiat entered into an automobile dealership contract governed by a "Dealer Sales & Service Agreement."1   Under this contract Fiat agreed to sell Fiat cars to Janpol for resale on the retail market.  Fiat also agreed to supply Janpol with replacement and repair parts and to reimburse Janpol for certain warranty repairs.  The parties operated under their agreement satisfactorily until approximately 1981, when their relationship began to deteriorate.  At that time, Janpol began receiving a number of weather-beaten and defective cars from Fiat.  Many of the cars had been stored outside in unprotected conditions for lengthy periods as a result of declining sales in the United States and problems related to work stoppages and strikes in Italy.  The cars required a substantial amount of repair and refurbishing before Janpol could sell them to its retail customers.  While Fiat bore the expense of the repair and refurbishing, a number of cars were returned to Fiat, at Janpol's expense, when Janpol concluded that it could not sell them lawfully in New Mexico as new cars.

3
In addition to the problems related to storage, a number of Janpol's Fiat customers experienced serious and costly mechanical problems with cars both inside and outside the new car warranty period.  The problems included malfunctions in the cars' cooling, oil, ignition, transmission, exhaust and electrical systems.  According to witnesses for both Fiat and Janpol, some of these problems were caused by design defects, while others were caused by poor workmanship during manufacturing and assembly.  These problems occurred throughout the life of the contract but increased noticeably in 1979 and 1980.

4
Janpol and Fiat also became embroiled in numerous disputes over the processing and payment of warranty claims that Janpol submitted to Fiat.  These claims were to be submitted and processed in accordance with specific Fiat warranty procedures and payment to Janpol required approval and authorization by Fiat.  Disputes as to the necessity, amount, and proper submission of warranty claims increased, and many claims remained unresolved.  As a result, in 1981 Janpol refused to perform any further warranty or recall repair work for Fiat unless Fiat customers paid for such work in advance.  Relations between Janpol and Fiat worsened until February 1982 when Fiat notified Janpol that it intended to cancel Janpol's franchise and to terminate the contract because of Janpol's refusal to perform warranty claim and recall service work.  Janpol brought an action in New Mexico state court seeking to enjoin Fiat's cancellation of the franchise agreement and alleging breach of contract.  Janpol sought damages for lost profits, loss of business goodwill, repair work expenses, unpaid warranty claims, shipping expenses, diminution in the value of its inventory of Fiat cars, and diminution in the value of the franchise.  Janpol also claimed that Fiat had violated the New Mexico Motor Vehicle Dealers Franchising Act, N.M.Stat.Ann. Secs. 57-16-1 et seq.  (1978 & Supp.1981).  Finally, Janpol sought punitive damages and attorneys fees.

5
Fiat removed the action to federal district court.  Following a bench trial on the merits, the court found that Fiat had failed to provide Janpol with saleable quality cars and had failed to honor Janpol's proper warranty claims.  The court also found that as a result of customer complaints and in order to maintain its business reputation, Janpol was forced to make warranty repairs and bear the cost itself, to repurchase cars from dissatisfied customers and resell them at a loss, and to defend and settle lawsuits brought by dissatisfied Fiat purchasers.  The court awarded Janpol $38,198 in compensatory damages and $50,000 in punitive damages.2   In a separate order entered after the judgment on the merits, the court denied Janpol's request for attorneys fees.  On appeal, Fiat contends that the district court erred in (1) finding a breach of contract;  (2) computing the compensatory damages;  and (3) awarding punitive damages.  On cross-appeal, Janpol argues that the district court erred in denying its request for attorneys fees.

II.
BREACH OF CONTRACT

6
Fiat first claims that the district court erred in finding that Fiat failed to provide Janpol with quality cars and improperly rejected Janpol's warranty claims.  Fiat argues that its actions do not constitute a breach of contract and also argues that the finding of improper rejection of warranty claims is not supported by the evidence.3   We disagree.

7
The findings of fact by a trial court must be upheld on appeal unless they are clearly erroneous.  Fed.R.Civ.P. 52(a).  Findings are not to be determined clearly erroneous unless, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made.   See, e.g., Anderson v. City of Bessemer City, --- U.S. ----, ----, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 53 U.S.L.W. 4314, 4317 (1985), Thornton v. Coffey, 618 F.2d 686, 690 (10th Cir.1980);  Diggs v. Western Electric Co., 587 F.2d 1070, 1072 (10th Cir.1978).  Our review of the record shows that the trial court's finding of breach of contract is supported by the evidence and is not clearly erroneous.

8
Under the terms of the contract, Fiat expressly agreed to provide Janpol with quality cars.4   Janpol produced evidence that a number of cars were delivered to it in a deteriorated condition, and witnesses for both Fiat and Janpol testified that many cars were not saleable when received because of weather damage and mechanical problems.  Fiat argues that it did not breach its obligation to provide quality cars because it agreed to pay for the repair and refurbishing of the cars after Janpol received them and before they were sold.  Janpol also presented evidence, however, that on at least one occasion it rejected almost all the cars in one shipment when it concluded that the cars could not be sold lawfully as new cars to New Mexico consumers after such repair and refurbishing.5   In addition, in a number of cases where Fiat directed Janpol to repair cars it had received in an unsaleable condition, the parties subsequently became embroiled in unresolved disputes over Janpol's right to reimbursement for these repairs.  Janpol introduced evidence that as a result of these uncorrected problems and other Fiat car defects, it was forced to sell several cars as used, to sell several more at a substantial loss from the retail price for a new car, to repurchase several cars from dissatisfied customers, and to perform repairs for customers free of charge in order to preserve customer goodwill and its reputation as a car dealership.  At the time of the lawsuit, Janpol also possessed three newly delivered Fiat cars which it apparently had accepted but was unable to sell because of subsequent mechanical defects, and which Fiat refused to repurchase.  Thus, despite Fiat's claim that subsequent repairs could cure its failure to deliver quality cars, the record indicates that Janpol's subsequent attempts at repair were often fruitless, unsuccessful, and uncompensated.

9
The district court also found that Fiat had willfully and improperly failed to honor fifty-eight proper warranty claims in the amount of $7,633.  Fiat contends that it was simply following its standard warranty claims procedures, as prescribed by the contract, and that the court's finding is clearly erroneous because there is insufficient evidence to show that Janpol's claims were proper.  We are not persuaded.

10
At trial, Janpol's service manager testified that he was familiar with the warranty claims procedures and that Janpol followed the prescribed procedures in submitting claims.  He also testified that from his experience, Fiat's warranty rejection rate was much higher than that of other car manufacturers.  The service manager and Janpol's president testified that on several occasions, Janpol obtained prior authorization from Fiat for major repairs but that Fiat then rejected the warranty claims after the repairs were completed.  The record contains evidence that Fiat's warranty review policies were inconsistent, that claims were rejected with no reason given, and that on occasion, Fiat had allowed claims that were not submitted in accordance with its procedures.

11
Moreover, the record indicates that Fiat's zone service manager, who was responsible for warranty problems with Janpol, was unable to explain a number of warranty rejections and nonpayments when confronted at trial with specific warranty claims.  He admitted that, in some instances, the warranty rejection forms were not properly filled out by Fiat or did not contain sufficient information necessary to understand or to evaluate a rejection.  Finally, the record contains Fiat's reports of periodic inspections of the Janpol dealership conducted by Fiat's field service representative from 1978 to 1981.  These records indicate that Fiat considered Janpol's warranty claims administration to be generally satisfactory.  While Fiat introduced evidence to rebut Janpol's claims and to attack the credibility and expertise of Janpol's employees, we cannot say that the district court erred in finding that Janpol's warranty claims were properly submitted and improperly rejected.    See Anderson, --- U.S. at ----, 105 S.Ct. at 1512.

12
Fiat's obligations to provide Janpol with quality cars and to reimburse proper warranty claims went to the very heart of the parties' agreement.  Fulfillment of these obligations was vital to Janpol's success as well as to a successful business relationship between the two parties.  The district court did not err in concluding that Fiat's actions constituted a material breach of its contract with Janpol.  The award of $7,633 in damages for improper rejection of warranty claim likewise is not clearly erroneous.

III.
COMPENSATORY DAMAGES

13
In addition to damages for improper rejection of warranty claims, the district court awarded Janpol compensatory damages of $15,000 for goodwill customer repairs and $15,565 for losses Janpol incurred in repurchasing cars from its dissatisfied Fiat customers.6   Fiat argues that these damages awards are erroneous and not supported by the evidence.

14
Mr. Art Janpol, Janpol's president and general manager, testified that Janpol had performed a significant number of repairs and services free of charge for its dissatisfied Fiat customers.  These repairs and services were not covered by the Fiat warranty and Mr. Janpol testified that the repairs and services were performed to preserve Janpol's reputation as a car dealer and to retain customer goodwill.  He based the amount of claimed repairs on an estimated percentage of total dealership car service sales for 1979 and 1980.  At trial, Fiat made no attempt to rebut or challenge this estimate but argues on appeal that proof of these damages was inadequate and that the damages were not the result of any breach by Fiat.  We are not convinced that the district court's findings are clearly erroneous.  The uncontroverted testimony of Mr. Janpol and the evidence of an inordinate amount of Fiat repair work by Janpol support a claim for damages of $15,000 for goodwill repairs.

15
Fiat also challenges on appeal the entire award of $15,565 in damages for repurchase losses, disputing Janpol's computations for individual transactions as well as Janpol's motives and the reasonableness of its decisions to repurchase or resell certain cars.  At trial, Janpol produced testimony and documentary evidence in support of these claims for damages except for two items that we will address below.  For the most part, Fiat made no attempt to rebut or challenge this evidence.  We will not consider arguments made for the first time on appeal.   See Kenai Oil & Gas, Inc. v. Department of Interior, 671 F.2d 383, 388 (10th Cir.1982);  CCMS Publishing Co. v. Dooley-Maloof, Inc., 645 F.2d 33, 37 (10th Cir.1981);  B & J Crane & Rigging, Inc. v. Beker Resources Corp., 587 F.2d 1065, 1068 (10th Cir.1978).

16
There are, however, two items of damages for which there clearly is no support in the record.  The first involves a 1979 Fiat which Janpol sold to a Mr. Barr and subsequently repossessed for nonpayment.7   Janpol resold the car to another customer, who immediately experienced severe mechanical problems and returned the car in exchange for a full refund.  The record indicates that Janpol's computation of its loss of $2,775 includes a loss of $1,958 attributed to the car's initial repossession.  There is no evidence in the record to support a determination that this $1,958 loss was due to Fiat's breach of contract or to the problems Janpol experienced with Fiat cars.  Because the $1,958 loss appears to be due solely to a decline in the value of a new car which was repossessed for nonpayment, this portion of the $2,775 damage award is clearly erroneous.

17
The second error involves the repurchase of a 1979 Fiat from a Mr. Lano.8   Janpol subsequently resold this car at a loss of $550.  In Plaintiff's Exhibit 9-D, submitted in support of this claim, Janpol subtracted its $1,398 profit from the original sale to Mr. Lano, and arrived at a loss figure of $550.  Although the trial court accounted for this profit deduction on all the other repurchase losses, it failed to do so in this instance and awarded Janpol $1,948.  We have a definite and firm conviction that the trial court erred in its calculation.  The award of this additional $1,398 is clearly erroneous.

18
In sum, the award of damages of $15,000 for goodwill repairs is affirmed.  The award of damages of $15,565 for repurchase losses is reduced by the amount of $3,356.  The balance of this award, in the amount of $12,199, is affirmed.

IV.
PUNITIVE DAMAGES

19
Fiat also argues that the district court erred in awarding Janpol $50,000 in punitive damages.  Under New Mexico law, punitive damages normally are not recoverable for breach of contract.   Whitehead v. Allen, 63 N.M. 63, 313 P.2d 335, 336 (1957);  Stewart v. Potter, 44 N.M. 460, 104 P.2d 736, 740 (1940).  New Mexico does recognize an exception to this rule, but only for a breach of contract that is "maliciously intentional, fraudulent or oppressive, or committed recklessly or with a wanton disregard of the rights of the plaintiff."   Lujan v. Pendaries Properties, Inc., 96 N.M. 771, 635 P.2d 580, 583 (1981);  see also State Farm General Insurance Co. v. Clifton, 86 N.M. 757, 527 P.2d 798, 800 (1974).  In addition, the New Mexico Motor Vehicle Dealers Franchising Act permits an award of punitive damages in cases where a defendant has acted "maliciously."    N.M.Stat.Ann. Sec. 57-16-13 (1978).

20
The district court did not find that Fiat's actions were maliciously intentional, fraudulent, oppressive, reckless, or undertaken with wanton disregard of Janpol's rights.  The court found only that Fiat "willfully and improperly" denied the warranty claims and "willfully breached its contract" with Janpol.  Rec., vol.  I, at 93.  The court then concluded that Janpol was entitled to punitive damages.

21
We believe the district court erred in awarding punitive damages for willful breach of contract when the New Mexico Franchise Act and New Mexico common law clearly authorize an award of punitive damages only when the breaching party has acted maliciously.  A breach may be willful or intentional and yet not rise to a level of conduct warranting an award of punitive damages.  Absent a finding of malice, the district court's award of punitive damages was incorrect as a matter of law and must therefore be reversed.

V.
ATTORNEYS FEES

22
In its cross-appeal, Janpol argues that the district court erred in denying its request for attorneys fees.  Whatever the merits of Janpol's claim, we need not address them because Janpol's appeal on this issue was not timely filed.9

23
In its complaint, Janpol requested attorneys fees along with its claims for monetary and injunctive relief.  In the judgment on the merits entered on March 14, 1983, the district court awarded monetary relief but did not address the attorneys fees request.  Fiat filed a notice of appeal from this judgment on March 21.  Janpol then filed a motion on March 31 requesting attorneys fees.  On April 12 Janpol filed a cross-appeal to Fiat's notice of appeal, while its attorneys fees motion was still pending.  The district court ultimately denied the request for attorneys fees in an order entered May 26.  Janpol did not file a notice of appeal from this order.

24
Janpol states that because the time allowed for filing its notice of cross-appeal would have expired before the district court acted on its motion requesting attorneys fees, it filed the notice of cross-appeal to "protect its position."    Brief of Appellant at 1.  Its actions reflect a misunderstanding of the process for appealing judgments on the merits and judgments awarding or denying attorneys fees.  In Cox v. Flood, 683 F.2d 330 (10th Cir.1982), we held that "judgments finally disposing of the merits are appealable even though questions relating to attorney's fees have been left undecided."   Id. at 331.  In this case, the judgment on the merits entered on March 14 became appealable at that time, and Fiat timely filed its notice of appeal within thirty days of the entry date of the judgment.  See Fed.R.App.P. 4(a).

25
Attorneys fees requests, however, raise legal issues "collateral to the main course of action" requiring "an inquiry separate from the decision on the merits."   White v. New Hampshire Department of Employment Security, 455 U.S. 445, 451-52, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1982).  As the Supreme Court's decision in White and our decisions in Cox and subsequent cases indicate, a judgment on the merits and a subsequent attorneys fees determination are separate and distinct proceedings.    See id.;    Cox, 683 F.2d at 331;  Equal Employment Opportunity Commission v. Gaddis, 733 F.2d 1373, 1375-76 (10th Cir.1984).  For purposes of appeal, each determination results in a separate and distinct final decision and the filing of a separate notice of appeal is therefore required to obtain review.  Where a prompt attorney's fee determination is made, an appeal from the fee determination may normally be considered together with any appeal from a final judgment on the merits.   White, 455 U.S. at 454, 102 S.Ct. at 1167.  The possibility of consolidation on appeal does not, however, eliminate the requirement of separate notices of appeal.

26
Janpol's filing of its notice of cross-appeal did not fulfill this requirement for a separate filing.  The cross-appeal on attorneys fees was filed while the attorneys fees motion was still pending in the district court.  It was therefore premature and did not transfer jurisdiction to the court of appeals.10   See Century Laminating, Ltd. v. Montgomery, 595 F.2d 563, 567 (10th Cir.1979).  Timely filing of a notice of appeal is mandatory and jurisdictional.   Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 311, 42 L.Ed.2d 270 (1974);  Lathrop v. Oklahoma City Housing Authority, 438 F.2d 914, 915 (10th Cir.), cert. denied, 404 U.S. 840, 92 S.Ct. 132, 30 L.Ed.2d 73 (1971).  Because Janpol failed to file a notice of appeal within thirty days after entry of the order denying attorneys fees, this court does not have jurisdiction to review that order.

VI.
CONCLUSION

27
The district court's award of actual damages is reduced by $3,356;  it is otherwise affirmed in the total amount of $34,842.  The award of punitive damages is reversed.  Janpol's cross-appeal is dismissed for lack of appellate jurisdiction.

1
 The contract also incorporated by reference the "Fiat Dealer Operating Requirements Agreement," the "Fiat Warranty Policy & Procedure Manual," and the "Fiat Pre-Delivery Inspection Program."

2
 The court rejected the remainder of Janpol's damage claims, including loss of franchise value and loss of future profits from new and used car sales, car service, and parts sales.  The court found that Janpol had failed to establish these claims by a preponderance of the evidence

3
 Fiat also argues that the contract is governed by New York common law and the Uniform Commercial Code.  Fiat did not raise these issues in the proceedings before the district court and we need not address them on appeal.   See Kenai Oil & Gas, Inc. v. Dep't of Interior, 671 F.2d 383, 388 (10th Cir.1982);  CCMS Publishing Co. v. Dooley-Maloof, Inc., 645 F.2d 33, 37 (10th Cir.1981);  B & J Crane & Rigging, Inc. v. Beker Resources Corp., 587 F.2d 1065, 1068 (10th Cir.1978)

4
 The Dealer Sales and Service Agreement contains an introductory provision entitled "Basis of Agreement" which states in part:  "[Fiat] must distribute only quality Fiat motor vehicles to quality dealers."    Rec., vol.  I, at 9

5
 Fiat argues that this conclusion by Janpol was erroneous and unreasonable.  After reviewing the relevant New Mexico statutes, we conclude that Janpol's fear that it might incur liability was not unfounded.  See N.M.Stat.Ann. Secs. 57-12-1 et seq.  (1978 & Supp.1981);  N.M.Stat.Ann. Secs. 57-16-1 et seq.  (1978 & Supp.1981).  We do not decide whether the sale of refurbished cars as new constitutes fraud, but we believe these statutory provisions support the district court's decision to assess the quality of some of the cars as of the time of their delivery to Janpol by Fiat

6
 The district court's findings of fact state, in pertinent part:
"13.  Plaintiff has suffered the following damages:
      (1) Unpaid warranties          $ 7,633.00
      (2) Good will service work
          (estimated)                 15,000.00
      (3) Repurchase of cars &
          losses:
          a. SN 9800 Lemon               700.00
          b. SN 2834 Knott             1,050.00
          c. SN 3325 Lano              1,948.00
          d. SN 4802 Winterink       3,526.00
          e. SN 2308 Barr               2,775.00
          f. SN 2535 Bates              1,505.00
          g. SN 6822 Richesin
             (exclusive of $2,300
             warranty loss)               4,061.00
                              TOTAL   $38,198.00"
Rec., vol.  I, at 92.

7
 See note 6, supra

8
 See note 6, supra

9
 While neither Janpol nor Fiat raised this issue of timeliness on appeal, it involves a question of subject matter jurisdiction and this court may raise the issue sua sponte.  See Fed.R.Civ.P. 12(h)(3);  Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1366 (10th Cir.1982);  Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974)

10
 There is no indication in the record that the district court made any announcement of its decision or order concerning attorneys fees until its order was entered on May 26.  Thus, Janpol's premature filing of its cross-appeal cannot be treated as filed after and on the date of such entry.  See Fed.R.App.P. 4(a)(2)


280 F.Supp.2d 459 (2003)
Jane DOE, John Doe, Baby Jane Doe, by her guardian, John Doe, Baby John Doe, by his guardian, John Doe, Plaintiffs,
v.
UNITED STATES of America, Defendant.
No. 1:01CV00646.
United States District Court, M.D. North Carolina.
August 27, 2003.
*460 Robinson O. Everett, Craig Myer Kabatchnick, Seth Allen Neyhart, Everett & Everett, Durham, NC, for Plaintiffs.
Gill P. Beck, Office of U.S. Attorney, Greensboro, NC, for Defendant.

MEMORANDUM OPINION
OSTEEN, District Judge.
Plaintiffs Jane Doe, John Doe, Baby Jane Doe, and Baby John Doe filed this action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), et seq. Plaintiffs claim that members and civilian personnel of the United States Navy administered a blood transfusion to Jane Doe in 1983 negligently and without her informed consent. After a bench trial, the court issues the following findings of fact and conclusions of law.

I. FINDINGS OF FACT
Pregnant with her first child, Plaintiff Jane Doe arrived at the Navy Regional Medical Center in Millington, Tennessee ("NRMC Millington"), in the evening of July 7, 1983. She was 20 years old, receiving medical care as a dependent of her Marine husband, Plaintiff John Doe. It was not her first visit to NRMC Millington. *461 Just eight days before, doctors at the facility tried to induce labor because she had carried her child 15 days beyond her due date. The inducement did not result in childbirth. Now she was three weeks past term, her amniotic fluid had been leaking for 20 hours, and she was in labor.
After an initial examination, Dr. Harold Short, a family physician, recognized that it was important for Jane Doe's labor to progress. Her ruptured membranes, which permitted amniotic fluid to leak, had caused an infection of the uterus evidenced by a low-grade fever. In addition, she had high blood pressure and an elevated heart rate. Dr. Short placed Jane Doe on antibiotics for the infection and oxytocin, a hormone that stimulates the uterus to contract, to induce childbirth. Recognizing that a Caesarean section was a possibility, he ordered that two units of red blood cells should be typed and cross-matched so Jane Doe could be transfused if necessary. Dr. Short consulted Dr. Romeo Perez, an obstetrician, who concurred with the course of treatment.
By 5:30 a.m., on July 8, Jane Doe's labor had stalled despite continued doses of oxytocin. Dr. Short noted the presence of thick meconium, material from the baby's bowel that is typically passed after birth. More alarmingly, the fetal heart monitor showed the baby's heart rate declining after each contraction. Together with the meconium, these "late decelerations" indicated fetal distress. Dr. Perez and Dr. Short decided to perform an emergency Caesarean section.
With Dr. Perez en route to the hospital, Dr. Short obtained Jane Doe's consent for the surgery, explaining that further induction posed high risks to the baby's health. Consistent with his standard practice at the time, he identified risks associated with a Caesarean section, including infection, injury to the baby, and risks associated with anesthesia. He discussed the risk of excessive bleeding, including the danger of bleeding so severe that would necessitate a transfusion, which itself carried the risk of a negative reaction. Jane Doe responded that she understood these risks and opted for general anesthesia rather than an epidural anesthetic. Jane Doe signed Standard Form 522 to consent to the procedure in the presence of Dr. Short and a nurse, who also signed the form.
Dr. Perez arrived at the hospital and met Jane Doe for the first time. In keeping with his standard practice, he introduced himself, explained his role as a specialist in obstetrics, and discussed why he believed a Caesarean section was appropriate. He identified alternatives to surgery, such as waiting, and their consequences. Like Dr. Short, Dr. Perez told Jane Doe that excessive bleeding during the procedure could make a blood transfusion necessary. He went on to explain that receiving a transfusion brought risks of hepatitis and negative reactions to the transfused blood. He concluded by giving Jane Doe the opportunity to ask questions. Jane Doe does not remember anyone mentioning the possibility of a transfusion before her surgery, nor does she remember any consultation with Dr. Short or Dr. Perez.
At 7:02 a.m., on July 8, Baby Jane Doe was born by Caesarean section. After the surgery, Jane Doe continued to receive oxytocin to control bleeding in the uterus. She had lost 450 to 800 cubic centimeters ("cc") of blood during the operation, and by 9:00 a.m. she had saturated three perineum pads with blood. Dr. Perez ordered a complete blood count to be performed six hours after the surgery and another one for the following morning. During the day of July 8, Jane Doe appeared to be recovering well. Her uterus was firm, her postpartum bleeding was moderate, and she visited the nursery in a wheelchair.
*462 The blood count results showed that Jane Doe had experienced significant blood loss. The two most direct measures were her levels of hemoglobin and hematocrit; the former is the part of red blood cells which carry oxygen, and the latter is the ratio of red blood cells to total blood volume, expressed as a percentage. Jane Doe's hemoglobin count had fallen from 12.8 grams per 100 milliliters of blood at admission, to 10.1 in the afternoon of July 8, to 8.9 on the morning of July 9. Her hematocrit had fallen from 35.5 at admission to 29.1 on July 8 to 25.6 on the morning of July 9. By 3:00 p.m., on July 9, when Dr. Perez learned the results of that morning's tests, Jane Doe's heart rate had risen from 96 beats per minute when she was admitted to 116 beats per minute, indicating that her heart was working harder to supply oxygen to her body. Her temperature was 100 degrees. By 3:30 p.m., Jane Doe passed what she recalls as one blood clot. The medical record explicitly describes several "large" clots, each understood by obstetricians to mean the size of a fist. At 4:00 p.m., a nurse called Dr. Perez to inform him about the clots, which suggested further loss of blood.
Based on this information, but without going to Jane Doe's bedside for a clinical evaluation or additional consent, Dr. Perez ordered a transfusion of two units of packed red blood cells. The blood came from a blood bank operated by the Navy, and everyone involved in collecting and transfusing the blood was a federal employee or agent. After the transfusion, Jane Doe's vital signs improved; her hemoglobin, for example, increased to 10.7, a two-point rise consistent with the administration of two units of red blood cells. She went home three days later, on July 12.
Three years later, in 1986, Jane Doe gave birth to her second child, Baby John Doe. She nursed both children.
Starting in 1991, Jane Doe developed myriad health problems. She endured swollen glands, gall bladder problems, sore throat with fevers of unknown origin, unexplained rashes, thrush, and shingles, among other ailments. In June 1995, her hair started falling out. In July, she was diagnosed with a severe yeast infection of her esophagus, a condition typically found only in terminally ill patients.
On July 18, 1995, Jane Doe tested positive for HIV. The test was performed by Dr. Terry Daniel, Jane Doe's family physician. Dr. Daniel explained to Jane Doe that although another test would be necessary to verify the diagnosis, the preliminary results meant she probably had Acquired Immune Deficiency Syndrome ("AIDS"). On July 24, 1995, Jane Doe learned that subsequent testing had confirmed the diagnosis. Not only did she test positive for HIV antibodies, but her extremely low CD-4 lymphocyte count suggested that her condition was very advanced. On July 31, 1995, Jane Doe learned that she had full-blown AIDS. Dr. Timothy Lane, an infectious disease specialist, took over her medical care.
Jane Doe and her doctors immediately began searching for the cause of her infection. On July 31, 1995, the day she received the conclusive diagnosis, Jane Doe and her husband completed an adult HIV Confidential Case Report. The report shortened the list of possible risk factors to two: "sex with male" and "transfusion of blood/blood components." (Gov't Ex. B-21.) Jane Doe had no sexual partners other than her husband. She initially suspected an affair by her husband, three years earlier, as the source of her HIV infection. John Doe, however, had twice tested negative for HIV.
A blood transfusion remained the other potential cause of infection. On the HIV Confidential Case Report, Jane Doe listed *463 two occasions when she had received blood transfusions: the Caesarean birth of Baby Jane Doe at NRMC Millington in 1983, and her delivery of Baby John Doe in 1986. Because blood donations have been screened for HIV antibodies since 1985, Dr. Daniel considered the 1983 transfusion the probable cause of Jane Doe's infection.[1] When Mr. and Mrs. Doe took their children to Dr. Wilma Lim for HIV testing on August 31, 1995, they told her that Jane Doe had contracted AIDS from a blood transfusion in 1983.
After seeing Jane Doe twice in August and September 1995, Dr. Lane noted in the medical record his intention to trace the 1983 blood transfusion. Jane Doe authorized this "look back" to identify the donors of the transferred blood, and Dr. Lane telephoned NRMC Millington on October 27, 1995.[2] He followed up with a written request on October 31 for records concerning the transfusion and an investigation into the donors' HIV status. The Navy's response to the request arrived on October 4, 1996, nearly a year later, in the form of a faxed copy of an internal memorandum from the Navy's Bureau of Medicine and Surgery to the commanding officer of NRMC Millington. Blood donor number M466896, who contributed one of the units of blood administered to Jane Doe, had died of AIDS.[3] The duration of the look back fell within the typical range for the Navy Blood Program.
On September 2, 1998, Plaintiffs' counsel filed administrative claims with the Navy,[4] which denied the claims on statute of limitations grounds on May 18, 2001. The Doe family filed the present action on July 3, 2001.

II. DISCUSSION
This case arises from the blood transfusion administered in July 1983, in the early stages of the medical profession's encounter with AIDS. In June 1983, military blood donors were asked to voluntarily refrain from donating blood if they fell into particular social groups, including sexually active homosexuals and intravenous drugs users, viewed as more likely to contract AIDS. At that time, "it was only hypothesized that AIDS was a blood borne virus." Doe v. Miles Lab., Inc., 927 F.2d 187, 189 (4th Cir.1991). "It is now widely accepted" that "the medical and scientific communities did not reach a consensus that AIDS could be transmitted by blood until 1984," the year scientists identified the virus that causes the disease. Spence v. Miles Lab., Inc., 37 F.3d 1185, 1187 (6th Cir.1994). That same year, of 1984, discussions *464 of AIDS risk became part of standard obstetric practice in Tennessee. The first test to screen blood for HIV antibodies was not licensed until March 1985. Doe, 927 F.2d at 190.
After the court's summary judgment ruling, the case went to trial on the Government's statute of limitations defense and on Plaintiffs' claims of medical malpractice and lack of consent.[5] The court addresses each issue in turn.

A. Statute of Limitations
The Government contends that the FTCA's two-year statute of limitations bars Plaintiffs' claims. See 28 U.S.C. § 2401(b). Although state law determines whether a cause of action exists under the FTCA, federal law governs when that cause of action accrues. Gould v. Department of Health and Human Servs., 905 F.2d 738, 742 (4th Cir.1990) (en banc). A tort claim against the United States is barred unless it is presented "in writing to the appropriate federal agency within two years after such claim accrues." 28 U.S.C. § 2401(b); United States v. Kubrick, 444 U.S. 111, 113, 100 S.Ct. 352, 354-55, 62 L.Ed.2d 259 (1979). The FTCA constitutes a limited waiver of sovereign immunity, id. at 117-18, 100 S.Ct. at 357, and satisfying the two-year statute of limitations is a "key jurisdictional prerequisite" to suit that cannot be waived. Kokotis v. United States Postal Serv., 223 F.3d 275, 278 (4th Cir.2000).
FTCA claims typically accrue when the plaintiff is injured. Kubrick, 444 U.S. at 120, 100 S.Ct. at 358. In medical mal-practice cases, however, neither the plaintiff's injury nor its cause may be immediately apparent. Id. at 122, 100 S.Ct. at 359. According to the "discovery rule" applied in such cases, a plaintiff's claim accrues "when the plaintiff knows or, in the exercise of due diligence, should have known both the existence and the cause of his injury." Gould, 905 F.2d at 742. A plaintiff possesses this knowledge when he becomes aware of "the critical facts that he has been hurt and who has inflicted the injury." Kubrick, 444 U.S. at 122, 100 S.Ct. at 359. A plaintiff armed with these critical facts must investigate to determine if the injury resulted from negligent conduct. Id. at 123-24 & n. 10, 100 S.Ct. at 360 & n. 10. Thus, a medical malpractice claim accrues under the FTCA "when a claimant first knows of an injury and its cause, and not only later when it is first realized that a particular legal claim may be maintainable in consequence of the injury." Miller v. United States, 932 F.2d 301, 304 (4th Cir.1991). This standard requires that a plaintiff have only "elemental knowledge" of his claim, not that he possess "complete knowledge of all elements or a legal understanding of the nature of the claim." Lekas v. United Airlines, Inc., 282 F.3d 296, 299 (4th Cir.2002). In short, the cause of action accrues upon inquiry notice. Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir.1995) (en banc).
For Plaintiffs' FTCA claims to be viable, they must have accrued after September 2, 1996, because Plaintiffs filed an *465 administrative action with the Navy on September 2, 1998. See 28 U.S.C. § 2401(b). Plaintiffs received inquiry notice on one of several possible dates. On July 31, 1995, Plaintiffs learned conclusively that Jane Doe had AIDS and examined her risk factors with Dr. Daniel. On August 31, 1995, Jane Doe told Dr. Lim that she believed the 1983 blood transfusion had caused her HIV infection. On September 21, 1995, Dr. Lane placed the 1983 transfusion at the top of his list of potential causes. On October 27, 1995, Dr. Lane made a telephone inquiry about the 1983 transfusion. On October 31, 1995, he submitted to the Navy a formal request for information. The memorandum conveying the news that one of Jane Doe's blood donors had died of AIDS was dated September 3, 1996. Dr. Lane received this information on October 4, 1996.
Defendant argues that Plaintiffs were on inquiry notice on the earliest of the possible dates, July 31, 1995. On that day, Plaintiffs knew that Jane Doe had AIDS; that her only risk factors were "sex with male" and blood transfusions; that she had received a blood transfusion at NRMC Millington in 1983, before donated blood was screened for HIV; that the other suspected transfusion occurred in 1986, after blood banks screened donated blood for HIV; that her only sexual partner was her husband, John Doe; that John Doe had twice tested negative for HIV; and that Dr. Daniel, Jane Doe's family physician, believed the 1983 transfusion was the probable cause of her HIV infection. Thus, Plaintiffs possessed on July 31, 1995 the "critical facts" that Jane Doe had AIDS and that the 1983 blood transfusion had caused her injury.
Plaintiffs contend that they were on inquiry notice on the last of the possible dates, October 4, 1996, when Dr. Lane received the fax stating that one of Jane Doe's blood donors had died of AIDS. Before that time, they argue, they could not know the critical fact about the cause of Jane Doe's HIV infection because that information remained in the Government's hands, unavailable despite her reasonable diligence.
The Fourth Circuit has rejected this argument. In Kerstetter v. United States, 57 F.3d 362 (4th Cir.1995), the court explained:
[I]t should not make a difference when the plaintiff learns just what went wrong during a medical operation. So long as the plaintiff knows the "critical fact" of "who has inflicted the injury," he can act to protect his rights by inquiring whether the injury was inflicted negligently. If he comes to suspect that it was, then he can file suit even before he discovers the precise medical cause of the operation's failure. After all, it might not be until discovery that he gains a satisfactory appreciation of the immediate cause of his injury.
Kerstetter, 57 F.3d at 365. The Fourth Circuit explicitly rejected the Kerstetter plaintiffs' suggestion that they knew the cause of their daughter's kidney failure only when they learned "the precise medical reason for the injury." Id. at 364. The "correct" construction of the term "cause" demanded "a greater level of generality  one that would require, in this case, only knowledge that the operation caused the injury." Id.
Before receiving any information from the Navy, Jane Doe and those treating her had eliminated all risk factors except for the transfusion and her husband, who was HIV-negative. Dr. Daniel identified the transfusion as the probable cause of her infection in July 1995. Jane Doe acknowledged to Dr. Lim in August 1995 that the transfusion caused her infection. Dr. Lane considered the transfusion to be the *466 prime suspect in September 1995. Jane Doe authorized Dr. Lane to submit an inquiry, the essence of inquiry notice, in October 1995. The Supreme Court and the Fourth Circuit have found claim accrual with less definitive notice of causation. See, e.g., Kubrick, 444 U.S. at 122, 100 S.Ct. at 359 (holding that the plaintiff's claim accrued when a physician told him that it was "highly possible" that his hearing loss resulted from a medical procedure); Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 500 (4th Cir.1989) (concluding that the plaintiff's claim accrued when he "suspected that he suffered from black lung disease and that his condition was caused by his work on the railroad"). Following this authority, the court concludes that the Navy's look-back response provided Plaintiffs merely the "precise medical reason" for Jane Doe's HIV infection, not one of the critical facts necessary for claim accrual. Kerstetter, 57 F.3d at 364.
Despite the compassion that Jane Doe's plight inspires, the court concludes that Plaintiffs' claims accrued on July 31, 1995. On that date, Jane Doe knew that her only risk factors were "sex with male" and blood transfusion, and that her husband had twice tested negative for HIV. She also knew that the 1983 transfusion occurred before blood was tested for HIV. Her family physician, Dr. Daniel, testified that Jane Doe's 1983 transfusion was her only HIV risk factor on July 31, 1995, once her husband had tested negative for HIV. Dr. Daniel considered the transfusion the probable cause of her infection. As a measure of the transfusion's importance in the minds of Jane and John Doe, they told Dr. Lim in August 1995 that the transfusion had caused Jane Doe's HIV infection.
Plaintiffs may not have been certain that the transfusion was the cause, but lingering uncertainty does not prevent claim accrual. Kerstetter, 57 F.3d at 364. In addition, the existence of more than one potential cause does not delay claim accrual. Nemmers v. U.S., 795 F.2d 628, 631 (7th Cir.1986) ("The putative plaintiff need not know that the suspicious event is more likely than not the cause."). Jane Doe continued to suspect her husband as the source of her infection, but Dr. Daniel eliminated him as the cause after he twice tested negative for HIV. Under the FTCA's objective standard, Jane Doe knew or should have known in July 1995 that the transfusion had caused her HIV infection. See Gould, 905 F.2d at 742; Nemmers, 795 F.2d at 631. Plaintiffs' administrative claims should have been filed before July 31, 1997. Their submission on September 2, 1998 was too late.
Jane Doe testified that she was in shock after her diagnosis, and that her immediate focus was on survival, not on gathering information for a prospective lawsuit. This natural reaction cannot be dismissed as unreasonable. Even considering Jane Doe's condition, however, she clearly was on inquiry notice no later than October 31, 1995 when Dr. Lane initiated a formal inquiry about the transfusion. The statute of limitations set forth in 28 U.S.C. § 2401(b) "represents a deliberate balance struck by Congress whereby a limited waiver of sovereign immunity is conditioned upon the prompt presentation of tort claims against the government." Gould, 905 F.2d at 742. Even when faced with powerful equitable considerations, courts are not free to construe the statute "so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims." Kubrick, 444 U.S. at 117, 100 S.Ct. at 357.
Jane Doe had family support, and her understandable shock and denial did not last two years. Several witnesses testified that she was interested in what caused her predicament. She identified the 1983 *467 transfusion to Dr. Lim as the cause of her infection in August 1995. She authorized Dr. Lane to request a look back in October 1995. When the Navy's response in October 1996 confirmed that one of her blood donors had died of AIDS, she was devastated. In February 1997, however, with help from her husband, she sought legal representation. All of this activity took place within the two-year limitations period, which elapsed in July 1997. Plaintiffs did not file a claim until September 1998. Regardless of the reason for this delay, the Government cannot be made to bear the burden of these consequences. Kubrick, 444 U.S. at 124, 100 S.Ct. at 360 ("If [a plaintiff] fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed.").
Plaintiffs argue that the Government's exclusive possession of donor information delayed claim accrual until Dr. Lane received the Navy's response to his inquiry about the 1983 transfusion. The Navy did control some information about Jane Doe's transfusion, including the facts that the blood came from the military and that one of the donors had died of AIDS. As explained above, however, the absence of this information did not delay claim accrual. See Gould, 905 F.2d at 745 (holding that claim accrual under the FTCA "does not wait until a plaintiff is aware that an alleged tort-feasor is a federal employee"). Plaintiffs express justifiable frustration at the manner in which the Navy responded to their request for information. They do not, however, allege misconduct that would support equitable tolling of the statute of limitations,[6] and no evidence suggested wrongdoing or undue delay by the Navy.
Although the court recognizes the hardship resulting to Plaintiffs in this case, it has no choice but to apply the law as written. Id. at 747; see also Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968) ("Although exceptions to the applicability of the limitations period might occasionally be desirable, we are not free to enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit."). The FTCA's statute of limitations "is jurisdictional and nonwaivable," and a claim accrues when the plaintiff knew or should have known of the injury and its cause. Gould, 905 F.2d at 740. Plaintiffs knew on July 31, 1995 that Jane Doe had AIDS and that the 1983 transfusion was a likely cause of her infection. Jane Doe told a doctor one month later that the transfusion had caused the infection. In October 1995 she displayed definitive evidence of inquiry notice by authorizing a formal inquiry to the Navy. Plaintiffs did not file a claim until September 2, 1998, well after the limitations period expired. Therefore, their claims are barred by the statute of limitations.[7]

*468 B. Medical Malpractice
Even if Plaintiffs could survive the statute of limitations defense, they would still face the challenge of proving liability for events that occurred two decades ago. Claims filed under the FTCA are construed using the substantive law of the state in which the alleged tort occurred. 28 U.S.C. §§ 1346(b), 2674. Therefore, Tennessee law applies in this case.
Plaintiffs' first claim alleges that Dr. Perez committed medical malpractice when he ordered the transfusion on July 9, 1983. A medical malpractice plaintiff suing under Tennessee law must prove:
(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
Tenn.Code Ann. § 29-26-115(a). A doctor has a duty to exercise reasonable care and diligence, and he must exercise his best judgment regarding treatment. Ward v. United States, 838 F.2d 182, 186 (6th Cir. 1988). Liability for malpractice depends on whether the physician fails to exercise the reasonable degree of learning, skill, and experience that is ordinarily possessed by others of his profession. Jackson v. United States, 24 F.Supp.2d 823, 832 (W.D.Tenn.1998) (citing Ward, 838 F.2d at 186-187).
Dr. Perez ordered the blood transfusion at 4:00 p.m. on July 9. He knew that Jane Doe had lost 450 to 800 cc of blood during surgery the previous morning; that her hemoglobin count had fallen from 12.8 grams per 100 milliliters of blood on July 7, to 10.1 on July 8, to 8.9 on the morning of July 9; that her hematocrit had fallen from 35.5 to 25.6 during the same period; that her heart rate, which had been consistently elevated since the surgery, had risen to 116 beats per minute; that her temperature was 100 degrees; and that she had passed blood clots earlier that afternoon, indicating further loss of blood. Based on this information, he ordered the transfusion of two units of packed red blood cells.
Under Tennessee law, a physician does not commit malpractice if he chooses a course of treatment supported by other competent physicians. Truan v. Smith, 578 S.W.2d 73, 76 (Tenn.1979). Similarly, because physicians enjoy the latitude of professional judgment, they do not breach the standard of care simply by choosing a procedure that is "but one of several procedures recognized in the profession as adequate" to treat a patient's condition. Harris v. Buckspan, 984 S.W.2d 944, 952-53 (Tenn.Ct.App.1998).
Dr. John Van Hooydonk and Dr. Lewis Nelson, both experienced obstetricians,[8] testified that Dr. Perez's decision to transfuse Jane Doe was an appropriate *469 course of treatment, and that the care she received exceeded the standard of obstetrical care in Tennessee in 1983. At that time, physicians relied on guidelines that strongly indicated a transfusion if testing showed a hemoglobin level below 10 or a hematocrit below 30. Jane Doe's readings were 8.9 and 25.6, respectively, and she subsequently passed blood clots suggesting further loss of blood. Dr. Nelson testified that an obstetrician monitoring a post-operative patient under these circumstances may reasonably rely on information from laboratory reports, the observations of an experienced nurse, and his own clinical evaluation from morning rounds to order a transfusion. Dr. Perez's decision not to perform a physical examination before ordering the transfusion was within this standard of care. Similarly, his decision not to draft a separate note detailing his reasons for the transfusion also conformed to the standard of care in 1983, when doctors considered blood transfusion a low-risk procedure.
Dr. Richard Van Fletcher, Plaintiffs' expert, opined that Dr. Perez should have visited Jane Doe before ordering the transfusion and should have stated explicitly his reasons for transfusing her in his notes. Dr. Fletcher noted that Jane Doe had normal kidney function, was not dizzy, had no significant drop in blood pressure, and had a heart rate not dramatically different from measures taken throughout her hospitalization. Taken together, Dr. Fletcher observed that these symptoms were inconsistent with shock, the danger that the transfusion purported to avert. He did not testify directly that the decision to transfuse Jane Doe violated the standard of care for making such decisions; to the contrary, he admitted that some physicians in 1983 would have ordered a transfusion for a patient with a hemoglobin count of 8.9. Instead, Dr. Fletcher stated that the cold clinical record did not support Dr. Perez's decision to transfuse Jane Doe, and that the absence of a explicit rationale for the transfusion in the record violated the standard of care.
For Plaintiffs to recover based on medical malpractice, it is not enough to show that Dr. Perez should have kept better records. Rather, they must prove that Dr. Perez's order to transfuse Jane Doe violated the standard of care in Millington, Tennessee and similar communities in 1983. See Tenn.Code Ann. § 29-26-115(a); Jackson, 24 F.Supp.2d at 832 ("In determining the degree of learning and skill required of a medical practitioner in the treatment of a particular case, regard must be given to the state of medical science at the time."). Although Dr. Fletcher disagrees with Dr. Perez's transfusion order, "a physician who uses his own best judgment cannot be convicted of negligence, even though it may afterward develop that he was mistaken." McPeak v. Vanderbilt Univ. Hosp., 33 Tenn.App. 76, 229 S.W.2d 150, 152 (1950).[9] No evidence suggests that Dr. Perez did not exercise his best judgment in ordering a transfusion based on the available information. Dr. Perez had evaluated Jane Doe clinically on the morning of July 9, and information from nurses and laboratory tests supported his conclusion that a transfusion was justified to ward off the reasonable risk of shock. Dr. Van Hooydonk and Dr. Nelson testified *470 that this course of treatment exceeded the standard of care in 1983.
To the extent that Dr. Fletcher opined that the decision to transfuse Jane Doe violated the standard of care, the court cannot attribute greater weight to that evidence than the statements of Dr. Hooydonk and Dr. Nelson for two reasons. First, although Dr. Fletcher graduated from medical school in Tennessee in 1974, he has never practiced obstetrics there. Dr. Van Hooydonk has practiced in Tennessee since completing his residency at Vanderbilt in 1976. Dr. Nelson taught obstetrics at the University of Tennessee in 1979-1980. Second, Dr. Nelson and Dr. Hooydonk have greater breadth of experience born both of their teaching responsibilities and their ongoing obstetrics practices. Dr. Fletcher stopped practicing in 1990.
Plaintiffs failed to prove by a preponderance of the evidence that the decision to transfuse Jane Doe violated the standard of care. Therefore, the court will enter a judgment for the Government on the medical malpractice claim.

C. Lack of Consent
Plaintiffs' remaining claims allege that Jane Doe did not consent to the transfusion. Tennessee provides two ways to recover for lack of consent: (1) medical battery, for completely unauthorized procedures, and (2) lack of informed consent, a variety of medical malpractice, for failure to disclose risks inherent in authorized procedures. Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn.1998). Plaintiffs proceed under both theories.
To prevail on her medical battery claim, Jane Doe must show that she was unaware that she would be transfused, and that she did not authorize the transfusion. Blanchard, 975 S.W.2d at 524. Jane Doe remembered receiving the transfusions, which took several hours to complete. Dr. Short discussed the possibility of transfusion before Jane Doe signed Standard Form 522, which signified that she understood the risks of Caesarean section, including transfusion. Dr. Perez also told Jane Doe before surgery of the risk that a transfusion could be necessary.
Plaintiffs argue that Jane Doe's consent to a Caesarean section on July 8 did not encompass consent to a transfusion administered the following day. According to the standard of care in Tennessee in 1983, however, consent to the surgery constituted consent to reasonable post-operative care, including transfusions. Dr. Van Hooydonk, whose practice at a Nashville hospital made him familiar with consent forms from across the state, testified that the Standard Form 522 was representative of pre-operative consent forms in 1983. According to Dr. Van Hooydonk, obstetricians in Tennessee in 1983 did not use a separate consent form before ordering a post-operative transfusion, which was viewed as a low-risk procedure. Dr. Perez also testified that it was not customary to execute a second consent form once a patient gave informed consent to surgery. Plaintiffs offered no evidence to the contrary. Therefore, the court concludes that Jane Doe consented to the transfusion. Because Jane Doe was aware of the transfusions and authorized them by her consent to the surgery, the court will enter judgment for Defendant on the medical battery claim.
To prevail on the claim that Jane Doe's consent was not informed consent, Plaintiffs bear the burden of marshaling expert testimony to establish: (1) what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the risk posed by the proposed treatment, and (2) that the defendant departed from the norm. Ashe v. *471 Radiation Oncology Assoc., 9 S.W.3d 119, 121 (Tenn.1999); German v. Nichopoulos, 577 S.W.2d 197, 204 (Tenn.Ct.App.1978). Plaintiffs also must prove that a reasonable person in Jane Doe's position would not have consented to the transfusion if adequately informed of all significant perils. Ashe, 9 S.W.3d at 120. To determine the adequacy of the information provided, the court considers the nature of the procedure, the extent of the risks involved, and the applicable standard of care. Blanchard, 975 S.W.2d at 525. Regarding the standard of care and its breach, Plaintiffs must demonstrate that:
the defendant did not supply appropriate information to the patient in obtaining informed consent to the procedure ... in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the defendant practices in the community in which the defendant practices or in similar communities.
Tenn.Code. Ann. § 29-26-118.
Standard practice in Millington, Tennessee in 1983 called for disclosure of the fact that transfusion recipients could experience a transfusion reaction, including a fever and rash. Other risks were considered very rare, and informed consent for a transfusion commonly occurred after a brief discussion, commensurate with its status as a low-risk procedure. The standard of care did not require doctors to discuss the risk of infection, for example, because blood banks screened for known blood-borne infectious diseases such as malaria, syphilis, and hepatitis.[10] Every obstetrician, including Plaintiffs' expert, Dr. Fletcher, testified that the standard of care in 1983 did not require informing patients about the risk of HIV from a blood transfusion. A patient's consent to be transfused, granted before surgery, extended to that patient's post-operative treatment.
The evidence shows that Dr. Short and Dr. Perez discussed the known material risks of a transfusion with Jane Doe before her surgery. Dr. Short disclosed to Jane Doe the possibility that she would have an unusual reaction to the transfused blood. Dr. Perez told Jane Doe about the risk of febrile reactions and hepatitis associated with blood transfusions.
Plaintiffs allege that Dr. Perez and Dr. Short failed to disclose the risks identified on a list attached to a version of Standard Form 522 created four years after Jane Doe's transfusion. Dr. Nelson and Dr. Van Hooydonk testified, however, that several of those risks are so rare that doctors in Tennessee did not disclose them to patients in 1983, when physicians were less wary of transfusions. Dr. Van Hooydonk and Dr. Nelson both testified that the discussion of potential risks by Dr. Short and Dr. Perez, including the risks associated with transfusion, exceeded the standard of care for informed consent in 1983.
A doctor may obtain informed consent before a surgery without disclosing "every possible thing that might go wrong." Longmire v. Hoey, 512 S.W.2d 307, 310 (Tenn.Ct.App.1974). Plaintiffs failed to prove that Jane Doe's physicians departed from the standard of care for disclosing the risks of transfusion. They also failed to convince the court that a reasonable person would have refused consent to a transfusion just before submitting to surgery under a general anesthetic. Therefore, judgment for Defendant is appropriate *472 on Plaintiffs' informed consent claim.

III. CONCLUSION
"We refer from time to time to a case as a hard one. We may mean that it is close and difficult to decide. Or we may mean, as we do here, that, while it is not so close, it is nevertheless difficult to decide because of its harsh impact on one of the parties." Wilkinson v. United States, 677 F.2d 998, 998 (4th Cir.1982). The tragedy that has befallen Jane Doe has brought suffering and anguish to her and her family. The court extends to them its compassion and encouragement. The law and the evidence dictate, however, that the Government is not liable for her injury. Plaintiffs did not file their claims within the two-year limitations period, and they did not prove that Jane Doe's doctors failed to comply with the applicable standards of care. Accordingly, the court must enter a verdict for the Defendant.

IV. CONCLUSIONS OF LAW
1. The court has jurisdiction over this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.
2. Venue in this district is proper. 28 U.S.C. § 1402(b).
3. Plaintiffs' claims accrued on July 31, 1995, and they failed to file an FTCA claim until September 1998. Plaintiffs proved no misleading conduct warranting equitable tolling of the statute of limitations. Accordingly, the FTCA's two-year statute of limitations bars Plaintiffs' claims. See 28 U.S.C. § 2401(b).
4. Even if the statute of limitations had not barred Plaintiffs' claims, Plaintiffs failed to prove by a preponderance of the evidence that Dr. Perez violated the applicable standard of care in ordering a transfusion for Jane Doe.
5. Even if the statute of limitations had not barred Plaintiffs' claims, Plaintiffs failed to prove by a preponderance of the evidence that Jane Doe gave no consent to be transfused at NRMC Millington following her Caesarean section.
6. Even if the statute of limitations had not barred Plaintiffs' claims, Plaintiffs failed to prove by a preponderance of the evidence that Jane Doe's consent to the transfusions was not informed.
NOTES
[1]  Contrary to her notation on the Confidential Case Report, Jane Doe had not been transfused in 1986.
[2]  The Navy implemented the Look Back Program to trace the disposition of blood donations by donors who subsequently tested positive for HIV.
[3]  Blood donor number M466896 deserted the Navy in April 1985. In April 1986, civil authorities in San Francisco apprehended and turned him over to military police, who detained him in the Treasure Island, California brig. At a special court martial, he was found guilty of desertion and received a sentence that included confinement for 60 months and a bad conduct discharge. He underwent a separation physical examination in May and was released into the private sector on June 2, 1986. His physical did not include an HIV test because the Navy's phased-in testing program did not yet require one.
[4]  Shortly after learning that one of Jane Doe's donors had died of AIDS, Plaintiffs retained counsel. In late August 1998, nearly two years after the date of the Navy's look-back response, the lawyer passed Plaintiffs' case to their present counsel. Jane Doe's present counsel acted promptly and professionally in recognizing the need to file the administrative claims so quickly. Present counsel are to be commended for their efforts.
[5]  Both parties moved for summary judgment on the statute of limitations issue. The court determined that the record, viewed in the light most favorable to the respective nonmoving party, presented a genuine issue of material fact as to when Jane Doe knew or should have known that the transfusion caused her HIV infection. At the summary judgment hearing, Plaintiffs conceded that the FTCA's discretionary function exception barred their claims that the Navy negligently administered its blood bank and Look Back programs. Neither party moved for summary judgment on the merits of Plaintiffs' medical battery, informed consent, or medical malpractice claims.
[6]  Statutes of limitations may be equitably tolled when "the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action." See Kokotis v. United States Postal Serv., 223 F.3d 275, 280-81 (4th Cir.2000) (quoting English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir.1987)). For FTCA purposes, equitable tolling addresses active deception, Lekas v. United Airlines, Inc., 282 F.3d 296, 301 (4th Cir.2002), and plaintiffs do not accuse the government of such conduct.
[7]  Because the statute of limitations bars Jane Doe's claims, it also bars the claims of the other Plaintiffs. See McCall v. United States, 310 F.3d 984, 988 (7th Cir.2002); MacMillan v. United States, 46 F.3d 377, 381 (5th Cir. 1995); Zavala v. United States, 876 F.2d 780, 782 (9th Cir.1989); Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 109 (Tenn.1996).
[8]  Dr. Van Hooydonk has held an assistant professorship in obstetrics and gynecology, in addition to other titles, at the Vanderbilt University School of Medicine since 1979. Dr. Nelson has been a member of the faculty of the Wake Forest University School of Medicine since 1976. He currently holds positions as Acting Chief of the Department of Obstetrics and Gynecology and as an assistant dean in the School of Medicine.
[9]  Although Tennessee's medical malpractice statute did not take effect until 1975, Tennessee courts applying the statute give precedential effect to cases decided before that date. Ward v. United States, 838 F.2d 182, 184 n. 2 (6th Cir.1988) (citing German v. Nichopoulos, 577 S.W.2d 197 (Tenn.Ct.App. 1978)); see also Cardwell v. Bechtol, 724 S.W.2d 739, 753 (Tenn.1987) (stating that Tenn.Code. Ann. § 29-26-115 codifies the common law elements of negligence).
[10]  Dr. Short did, however, inform Jane Doe that her overall treatment presented a risk of infection.


              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                     Docket No. 44231

STATE OF IDAHO,                               )   2017 Unpublished Opinion No. 503
                                              )
       Plaintiff-Respondent,                  )   Filed: June 27, 2017
                                              )
v.                                            )   Karel A. Lehrman, Clerk
                                              )
GARRETT RANDOLPH BOWSER,                      )   THIS IS AN UNPUBLISHED
                                              )   OPINION AND SHALL NOT
       Defendant-Appellant.                   )   BE CITED AS AUTHORITY
                                              )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Lansing L. Haynes, District Judge.

       Judgment of conviction and unified sentence of five years, with a minimum
       period of confinement of two years, for leaving the scene of an injury
       accident, affirmed; Order denying Idaho Criminal Rule 35 motion for reduction of
       sentence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

                     Before GUTIERREZ, Judge; MELANSON, Judge;
                                 and HUSKEY, Judge
                  ________________________________________________

PER CURIAM
       Garrett Randolph Bowser was found guilty of leaving the scene of an injury accident,
Idaho Code § 18-8007, and striking a fixture, I.C. § 49-1304. The district court imposed a
unified sentence of five years, with a minimum period of confinement of two years, for leaving
the scene of an injury accident and a concurrent 180-day jail sentence for striking a fixture.
Bowser filed an Idaho Criminal Rule 35 motion for reduction of sentence, which the district
court denied. Bowser appeals, contending that his sentence for leaving the scene of an injury

                                              1
accident is excessive and that the district court abused its discretion in denying his Rule 35
motion.
        Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established.
See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-15 (Ct. App. 1991); State
v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984); State v. Toohill, 103
Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing the length of a sentence,
we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387,
391 (2007). Applying these standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion.
        Next, we review whether the district court erred in denying Bowser’s Rule 35 motion. A
motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, addressed to
the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d 23, 24 (2006);
State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In presenting a Rule 35
motion, the defendant must show that the sentence is excessive in light of new or additional
information subsequently provided to the district court in support of the motion.          State v.
Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our review of the grant
or denial of a Rule 35 motion, we consider the entire record and apply the same criteria used for
determining the reasonableness of the original sentence. State v. Forde, 113 Idaho 21, 22, 740
P.2d 63, 64 (Ct. App. 1987); Lopez, 106 Idaho at 449-51, 680 P.2d at 871-73. Upon review of
the record, we conclude no abuse of discretion has been shown.
        Therefore, Bowser’s judgment of conviction and sentence, and the district court’s order
denying Bowser’s Rule 35 motion, are affirmed.

                                                     2


3 Va.App. 175 (1986)
ZED RATLIFF
v.
DOMINION COAL COMPANY, et al.
Court of Appeals of Virginia
October 7, 1986
Gerald Sharp (Larry Grant Browning; Browning, Morefield, and Schelin, P.C., on brief), for appellant.
Dennis E. Jones (Jones & Code, P.C., on brief), for appellee.
Employee appealed the decision of the Industrial Commission which held that his claim for coal worker's pneumoconiosis was barred by the statute of limitations.
The Court of Appeals affirmed, holding that in 1979, the employee received a medical determination of total disability due to pneumoconiosis and that under applicable federal law, he was required to file a claim with the Industrial Commission within three years thereof.  Because he did not file until 1985, his claim for benefits was barred by the statute of limitations.
KOONTZ
KOONTZ, C.J., -- Appellant, Zed Ratliff, appeals from a decision of the Industrial Commission holding that his claim for coal worker's pneumoconiosis benefits was time barred.  Although the parties present a number of issues on appeal, the critical issue, and the only one we need address, is whether the Commission erred in finding that Ratliff's claim was barred by the statute of limitations.  We agree with the Commission, and affirm.
Ratliff worked in the coal mines of Southwest Virginia for more than thirty years, the last seventeen as a foreman for appellee Dominion Coal Corporation. In 1971, the United States Department of Health, Education and Welfare took a chest X-ray of Ratliff.  Dr. W. Casey Morgan, Chief, Appalachian Laboratory for Occupational Respiratory Diseases of Morgantown, West Virginia, read the X-ray to indicate that Ratliff was suffering from "category 2 simple pneumoconiosis (UICC classification)." A copy of the X-ray findings was sent to Dr. J. P. Sutherland of Grundy, Virginia, Ratliff's personal physician.  Dr. Sutherland advised Ratliff that he "had black lung," and that "he shouldn't be working in dust." Ratliff continued working in the mines.
In 1973 Ratliff filed an "APPLICATION FOR BENEFITS UNDER THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, AS AMENDED (Coal Miner's Claim of Total Disability)," seeking benefits under the Federal Coal Mine Health and Safety Act, as amended.By letter dated October 24, 1979, the United States Department of Labor advised Ratliff that he met "the disability standards under the Black Lung Benefits Act." On December 22, 1979, Ratliff, by letter, advised the Department of Labor that he did not wish to pursue his claim at that time, and would continue to work.
Ratliff continued working until March 13, 1985.  Dr. Emory Robinette then advised Ratliff to cease working due to complicated coal worker's pneumoconiosis.  Ratliff filed for benefits under the Virginia Workers' Compensation Act on March 25, 1985, seeking compensation for total disability.
The deputy commissioner and the full Commission held that the claim was barred by the statute of limitations.  The Commission stated:
In this case of first impression, we hold that the statute of limitations may not be extended by the claimant through his own actions.  Here, the claimant received competent medical advice, at least by October 24, 1979, that he met the disability standards of the Federal Black Lung Benefits Act.  At that time, or within three years from that date, the claimant should have stopped work in the mines, based upon this medical advice, and filed his claim for total disability. We agree.
Ratliff filed the instant claim on March 25, 1985, seeking benefits for total disability under Code | 65.1-56.1(4).  He argues that this code section contains a statute of limitations in and of itself, and that he is not barred from pursuing his claim under the language of that paragraph.  Code | 65.1-56.1(4) reads in pertinent part:
[A]ny employee having a claim for coal worker's pneumoconiosis benefits shall be compensated according to the following schedule:
* * *
(4) For coal worker's pneumoconiosis medically determined to be A, B or C under the U.I.C.C. or I.L.O. classifications or which involves progressive massive fibrosis, or for any category of coal worker's pneumoconiosis when it is accompanied by sufficient pulmonary function loss as shown by approved medical tests and standards to render an employee totally unable to do manual labor in a dusty environment, and the employee is instructed by competent medical authority not to attempt to do work in any mine or dusty environment and if he is in fact not working, it shall be deemed that he has a permanent disability and he shall receive sixty-six and two-thirds per centum of his average weekly wages, during the three years prior to the date of filing of the claim, up to one hundred per centum of the average weekly wage of the Commonwealth as defined in | 65.1-54 for his lifetime without limit as to the total amount. (emphasis added).
Ratliff argues that the words "and if he is in fact not working" mean that the statute of limitations does not begin to run until a coal miner ceases work. This is clearly not the case.  Code | 65.1-56.1(4) appears in Chapter 5 of the Virginia Workers' Compensation Act, entitled "Compensation and Payment Thereof." A reading of Code | 65.1-56.1(4) clearly indicates that it governs the amount of compensation to be awarded a claimant who meets the standards prescribed therein.  To receive compensation under paragraph 4, the claimant must, among other things, cease work in the coal mines.  This paragraph in no way prescribes the time period in which a claimant must file a claim after receiving a communication of a diagnosis of pneumoconiosis.
The applicable Virginia statute of limitations is contained in Code | 65.1-52:
The right to compensation under this chapter shall be forever barred unless a claim be filed with the Industrial Commission within one of the following time periods:
1.  For coal miners' pneumoconiosis, three years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs.
If the Virginia Code contained no other applicable statute our analysis could end here.  Clearly, Ratliff received a communication of a diagnosis in 1971 and failed to file a claim.  The limitation period would have run by 1974. However, the Workers' Compensation Act includes Code | 65.1-65.2, which reads in pertinent part:
Notwithstanding any other provisions in this Act, on and after July one, nineteen hundred seventy-three, or any extended date allowed for State workmen's compensation laws to conform to standards imposed by the United States Department of Labor under the 1969 Federal Coal Mine Health and Safety Act as amended, in the case of claims for death or total disability under || 65.1-56.1(4) and/or 65.1-65.1, the following matters shall be required or effective only to the extent that they are allowed by the 1969 Federal Coal Mine Health and Safety Act as amended and the regulations issued thereunder:
* * *
(2) Any limitation for the filing of a claim for benefits for death or total disability under || 65.1-52 and 65.1-87.
The applicable federal limitations period is contained in 30 U.S.C. | 932(f): "Any claim for benefits by a miner under this section must be filed within three years after . . . a medical determination of total disability due to pneumoconiosis." The corresponding federal regulation provides: "A claim for benefits filed under this part by, or on behalf of, a miner shall be filed within three years after a medical determination of total disability due to pneumoconiosis which has been communicated to the miner." 20 C.F.R. | 725.308 (1986).  Thus, in order to trigger the running of this statute of limitations, a claimant must receive a communication of a diagnosis of pneumoconiosis, and there must also be "a medical determination of total disability due to pneumoconiosis."
We find that the 1979 letter from the Department of Labor was "a medical determination of total disability due to pneumoconiosis," so as to trigger the running of the three year limitation period.  To reach this result, two findings must be made.  First, there must be a "medical determination." Ratliff argues that the Department of Labor letter was an administrative or legal determination, but not a "medical determination." We decline to adopt such a constrained interpretation of the statute and regulation.  The letter was in response to a federal claim filed by Ratliff and supplemented with medical evidence.  Indeed, the letter itself makes reference to the medical evidence that was considered in determining that Ratliff met the federal disability standards.
The second factor which must exist is a finding that the medical determination was one of "total disability." The Federal Coal Mine Health and Safety Act of 1969, as amended, is designed to provide compensation for "certain miners, former miners, and their survivors for death or total disability due to pneumoconiosis arising out of employment in coal mines." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 5 (1976); see also 30 U.S.C. | 901(a); Knight, Compensation for Black Lung at the Federal Level: A Precedent for Nationalized Workmen's Compensation, 57 Va. L. Rev. 97, 98-99 (1971).
Ratliff was notified by the Department of Labor that he met the federal disability standards.  While the letter did not use the term "total disability," Ratliff knew, or should have known, that under federal law he was found to be totally disabled because the federal government only compensates for total disability or death.  This finding is supported by the fact that Ratliff had previously completed an application for federal benefits subtitled: "(Coal Miner's Claim for Total Disability)." While we recognize that what qualifies as "total disability" under federal law may not qualify as "total disability" under Virginia law, see 30 U.S.C. || 902, 921(c)(3), and 921(c)(4); Code | 65.1-56.1(4), it was, nevertheless, incumbent upon Ratliff to file a Virginia claim to allow the Commission to determine if Ratliff met the Virginia total disability standards.  Our holding is in keeping with the rule of law recently enunciated in Parris v. Appalachian Power Co., 2 Va. App. 219, 225-26, 343 S.E.2d 455, 458-59 (1986):
[O]nce an employee receives a communication of an occupational disease, it is incumbent upon that employee to file a claim.  Once a claim is filed, it is the duty of the Commission to determine: (1) whether the disease is in fact an "occupational disease" as defined in Code | 65.1-46, and if so, (2) whether that occupational disease is compensable. (footnotes omitted).
Once Ratliff received "a medical determination of total disability due to pneumoconiosis" via the 1979 Department of Labor letter, it was incumbent upon him to file a Virginia claim within three years in order to allow the Industrial Commission to determine whether, in addition to meeting the federal total disability standards, he also met the Virginia total disability standards. Ratliff failed to file a claim until 1985.  The Commission was correct in holding that the claim was barred by the statute of limitations.
Affirmed.
Coleman, J., and Moon, J., concurred.
Affirmed.$89:#GGG#