This section contains the nature of the case and procedural background.

On January 4, 1959, Darien, four months old, developed diarrhea. Ps consulted Dr. Hershon. In the evening of the same day, they took the baby's temperature. It was higher than normal. They called Dr. Hershon, and he prescribed additional medication (streptomycin), which he ordered delivered by a pharmacy. Darian did not sleep. On January 6th the parents took Darian to Dr. Hershon's office. Dr. Thomas examined the child and treated him for sore throat and diarrhea. He prescribed a liquid diet and some medicine. That night Darian's temperature was still above normal, and again he did not sleep during the night. On the 7th his temperature was still above normal. They knew that Dr. Hershon and Dr. Thomas were not in their offices on Wednesdays, and they took Darian to the emergency ward of D. Ps told the nurse that the child was under the care of Dr. Hershon and Dr. Thomas, and showed the nurse the medicines prescribed. The nurse explained to Ps that D could not give treatment because the child was under the care of a physician and there would be a danger that the medication of the hospital might conflict with that of the attending physician. The nurse tried to get in touch with Dr. Hershon or Dr. Thomas in the hospital and at their offices but was unable to do so. She suggested that Ps bring the baby Thursday morning to the pediatric clinic. Ps returned home. An appointment by telephone to see Dr. Hershon or Dr. Thomas that night at eight o'clock was made. Darian died at three o'clock in the afternoon from bronchial pneumonia. Ps sued D to recover damages for wrongful death in failing to render emergency assistance, in failing to examine the baby, in refusing to advise the intern about the child or permit the parents to consult him, and in failing to follow reasonable and humane hospital procedure for the treatment of emergency cases. D moved for summary judgment. Ps were told that where a person is under attendance and medication by a private doctor, and there is no frank indication of emergency, no treatment or medication may be given by doctors employed by the hospital until the attending doctor has been consulted. It was assumed by both parties below that the hospital was a private hospital and not a public one -- that is, an institution founded and controlled by private persons and not by public authority. The trial court found that D was a quasi-public institution in the receipt of grants of public money and tax exemptions. The court concluded liability may be imposed on D in an emergency case. The court denied the motion and D appealed.

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