Freedman

Petitioner joined physicians, a professional medical corporation and a hospital in a complaint for medical malpractice. The court sustained a demurrer without leave to amend as to the third cause of action of the first amended complaint, which purported to allege a battery. We entertain the petition because the striking of this cause of action from plaintiff’s complaint would bar an allegedly substantial portion of plaintiff’s case from hearing on the merits, and the issue raised appears to be novel and of significance to the resolution of an important aspect of malpractice cases. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894 [ 157 Cal.Rptr. 693 , 598 P.2d 854 ]; Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807 [ 94 Cal.Rptr. 796 , 484 P.2d 964 , 53 A.L.R.3d 513 ]; Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 557-558 [ 145 Cal.Rptr. 657 ]; 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, §§ 116, 118, pp. 751-755.)

Procedural Background

The defendants interposed a general demurrer as to the third cause of action on the ground that it did not constitute a valid action in battery and that it was barred by the statute of limitations. The trial…