Should we penalize the injured or the careless?

I researched alternative solutions to tort reform this week, specifically four types; guideline-based systems, enterprise liability, binding alternative dispute, and administration compensation systems.

With the utilization of a guideline-based system, if a healthcare practice complied and acted within the scope of the clinical practice guideline, then they were assumed to be non-negligent.

Enterprise liability refers to a system where healthcare providers themselves share malpractice liability usually placed solely on the doctor(s) themself. With binding alternative disputes, instead of malpractice claims reaching court, they are resolved through a third party outside the court. And lastly, administration compensation systems establish another administrative body to compensate claims outside of the traditional court system.

At first glance, these solutions seem to solve some of the alleged issues we have with our current system. The most known problem people talk about are the influx of frivolous cases backing up the courts. The question is, “How can we limit a consumer's access to the courts?” These implementations of tort reform answer this question. But, while it might answer the question, it doesn’t solve the issue. In essence, there is no such thing as a frivolous case that reaches court. Attorney’s simply do not file cases that do not meet the criteria for negligence, as that is not in their or their clients best interest.

Because of this, we should instead ask:

How can we reduce the frequency of negligence cases in general, rather stopping them from reaching the courtroom?