When food and drink texture recommendations do not align with a patient’s preferred diet textures, patients with dysphagia (or their family members) are often asked to sign a dietary waiver that outlines the recommended diet along with potential negative consequences (e.g., pneumonia, respiratory issues, aspiration, malnutrition, and even death) that may occur if the patient doesn’t follow these dietary recommendations. Theoretically, the patient (or their family member) signs the waiver to release the facility and care team from all liability if any negative consequences occur. But the problem with dietary waivers is that they may not hold up in court. While a signature on a waiver shows that the patient (or their family member) agreed to the dietary recommendation, it doesn’t necessarily prove that the patient understood the plan and/or agreed to the recommendations without coercion.
Sometimes, patients and their families don’t (or won’t) sign a dietary waiver. In these cases, facilities may face a heightened risk of family grievances, survey citations, and potential litigation if a resident experiences a negative outcome, like pneumonia, choking, or malnutrition. If this goes to court, facilities must prove that diet decisions were based on objective clinical evidence—not just the care team’s opinions. Problems can arise (or worsen) when the interdisciplinary team—nurses, SLPs, physicians, and dietary staff—presents inadequate documentation or inconsistent notes about the patient’s care that families, surveyors, or attorneys can exploit.
In A Tough Pill to Swallow: Medicolegal Liability and Dysphagia, which analyzed 45 dysphagia malpractice cases, the study found liability was frequently connected to failure to identify—or act upon—swallowing impairment. This demonstrates that courts may view failure to properly evaluate swallowing (sometimes including instrumental imaging) as a liability, and that clinical-only assessment (without imaging) may not be sufficient. This study emphasizes that lack of “adequate swallowing assessment” (including imaging) is a common thread in dysphagia malpractice cases.
This can be seen in a recent $45 million negligent medical treatment lawsuit against Temple University Hospital in Philadelphia. The plaintiff, a 19-year-old man’s family, claimed that, after hospital discharge, the teenager aspirated mashed potatoes, suffered brain damage and cardiac arrest. Part of the lawsuit alleged that the hospital failed to properly assess the young man’s swallowing function before discharge, despite neck injuries sustained from a gunshot wound. Additionally, the lawsuit alleged that the facility and care team didn’t adequately educate the patient’s mother, his caregiver, about diet restrictions and recommendations. This case demonstrated that, although risk was present, the hospital didn’t conduct an adequate swallow assessment on this patient before discharging him. This case demonstrated that, although an MBS was performed and dysphagia was identified, the hospital failed to implement or document adherence to the recommendations that resulted from the study. Despite having objective evidence of swallowing risk, the patient was discharged without adequate precautions in place. In the subsequent lawsuit, the court determined that the hospital’s failure was not in performing the study itself—but in disregarding its findings and failing to ensure continuity of care.
Legal decisions like this highlight that regulators and courts don’t necessarily mandate specific tests, but they do expect defensible, evidence-based management. When imaging results or clinical recommendations are ignored or poorly documented, it can expose facilities to significant legal and financial consequences. It’s clear that when diet recommendations are disputed and a waiver cannot be used, objective instrumental imaging (FEES and/or MBS) and thorough interdisciplinary documentation provide the clearest evidence of appropriate care and risk mitigation.
Take Proper Steps to Mitigate Risks
To ensure clear evidence of appropriate care—and mitigate risks—facilities must ensure that they regularly conduct:
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Objective imaging—through FEES or Modified Barium Swallow (MBS)—provides verifiable, defensible evidence of a patient’s swallowing function, documenting the physiological source of dysphagia and supporting diet and treatment recommendations. Although no regulation mandates instrumental assessment in every case, professional and payer guidelines consistently recognize FEES and MBS as the gold standard for comprehensive swallowing evaluation (ASHA, 2024; Aetna Clinical Policy Bulletin 0248). In malpractice reviews, the absence of such objective data is often cited as a documentation or oversight failure (Badger, A Tough Pill to Swallow, 2018). Imaging not only enhances clinical decision-making—it mitigates legal risk by demonstrating that care decisions were based on objective, evidence-supported findings.
- Proper documentation – ASHA’s article, Legal Implications of Clinical Documentation, reiterates that simply documenting subjective signs (e.g., “coughs while eating,” etc.) without objective confirmatory tests or imaging can weaken a facility’s case. Proper, consistent documentation across the patient’s interdisciplinary care team is the SNF’s strongest safeguard against complaints, lawsuits, and other potentially damaging consequences. In lawsuits, families often allege “we weren’t told the risks,” or “staff didn’t recognize signs.” If you have proper documentation—including video/images + scored reports showing aspiration risk or physiologic impairment—it’s harder for families to prove their allegations. Documentation that includes imaging often correlates with better outcomes and fewer legal claims (or smaller payouts) because the facility can show proactive risk identification. Therefore, Patheous Health’s Pathways 360 toolkit explains why care teams must follow documentation best practices, ensuring that all members of the patient’s care team are clear on what types of documentation are necessary so they can comply accordingly.
- Patient and family education – Patients may refuse to sign a waiver for numerous reasons, including fear, denial, family pressure, lack of education, religious/spiritual beliefs, etc. While some of these objections may be outside of the SLP’s control, SLPs can help educate their patients (and their families) so they can make more informed decisions about next steps. In fact, education is vital to each patient’s progress, and they’re more likely to follow treatment plans and diet modifications if they understand the reasons behind the SLP’s recommendations. SLPs must document these educational efforts as part of standard protocols. Pathway 360™—Patheous Health’s valuable toolkit of materials and resources that address critical dysphagia issues—will offer valuable resources to help SLPs and SNFs follow proper protocols, including patient education. For instance, our toolkit will include information on dysphagia, imaging, treatments, diet modifications, and more. This information will be presented in a consumer-friendly way to help SLPs explain these complex topics to patients and their families. Additionally, the materials will include documentation guidelines and checklists, enabling care teams to double check their compliance with every patient.
Why Interdisciplinary Documentation Matters
The Pathway 360 toolkit will provide resources around proper documentation—an essential part of patient care. The materials will include compliance checklists, outlining what SLPs need in terms of documentation, including a consent to treat, to ensure no steps are missed or forgotten. Plus, Pathway 360 will outline documentation best practices and explain why each step is necessary.
For instance, it will show that interdisciplinary care teams need:
- Unified records – When the entire care team—including nurses, SLPs, physicians, and dietary staff—are trained to document the same key elements (instrumental findings, conference notes, shared decisions), this documentation provides clear, objective records.
- Regulatory alignment – Proper, consistent documentation satisfies various CMS F-tags related to dysphagia and hospital readmissions, in addition to supporting QAPI audits.
- Survey & legal protection – High-quality records—complete with imaging, reports, and signed family-conference notes—provide evidence of best-practice care, which is invaluable if a complaint or lawsuit arises.
- Team accountability – Pathway 360 training ensures that every discipline in a patient’s care team knows how to capture their role in the decision-making process, reducing any “he said/she said” discrepancies.
The Patheous Health team is excited to launch Pathway 360, and we encourage our SNF customers to leverage these helpful resources. For more information about Pathway 360—and to access the toolkit—please visit Pathway360™: SLP Toolkit – Patheous Health.
