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MAY 16, 2000

SUPREME COURT OF LOUISIANA
No. 99-C-2570
BEN GUITREAU Versus ANDREW KUCHARCHUK, M.D.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE JOHNSON, Justice*
Plaintiff, Ben Guitreau, filed a medical malpractice action, claiming that the surgery performed on his knee by defendant, Dr. Andrew Kucharchuk, fell below the acceptable standard of care for orthopedic surgeons. In LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226, "we save[d] for another day the question of whether the medical malpractice victim gets any period of time that remains unused at the time of the filing of the request for the medical review panel when the ninety-day period of suspension after the decision of the medical review panel is completed." LeBreton, 714 So.2d 1229 n. 5. The First Circuit Court of Appeal has answered the question in the affirmative, and we granted this writ of certiorari to determine the accuracy of that court's decision. We affirm the court of appeal's decision and hold that when the ninety-day period of suspension after the decision of the medical review panel is completed, plaintiffs in medical malpractice actions are entitled to count the period of time, under LSA-R.S. 9:5628, that remains unused at the time the request for a medical review panel is filed. We also hold that the court of appeal did not err in finding that prescription commenced on November 23, 1992 and that plaintiff's action had not prescribed. Accordingly, we affirm the court of appeal's decision and remand this matter to the trial court. FACTS AND PROCEDURAL HISTORY On August 11, 1992, plaintiff, Ben Guitreau, underwent orthopedic surgery on his left knee. The surgery was performed by Dr. Andrew Kucharchuk. After surgery, plaintiff attended physical therapy and

*

Victory, J., not on panel. See Rule IV, Part 2,

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